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Attorney(S)
  • J.N.Bhan
  • Amicus Curiae
  • for Appellant
Judges
  • Wazir;Cj
  • Kilam
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • J.N.Bhan
  • Amicus Curiae
  • for Appellant
Judges
  • Wazir;Cj
  • Kilam
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Smart Summary

Structured Summary of the Opinion (Wazir, C.J.)

Factual and Procedural Background

The appellant, Samad Malik, was convicted of the murder of Wali Mir (son of Jabbar Mir) and sentenced to death under section 302, Ranbir Penal Code. He appealed against both his conviction and sentence, and the case was also placed before the Court for confirmation of the sentence.

Relevant factual background as recited by the court: Samad Malik was the son-in-law of Jabbar Mir and had been given half share in immovable property by a document executed by Jabbar Mir. After Jabbar Mir's death in winter 2008, a dispute arose regarding the share of land; a Panchayat awarded Samad a share in the house, the Kothar and the vegetable garden but not in the land. On 3rd Jeth 2009 Samad and Wali Mir went together to the fields and later Samad returned alone. Wali Mir was not found; subsequently Samad allegedly confessed to some villagers on 5th Jeth that he had murdered and drowned the boy, and an FIR was lodged on 6th Jeth.

Investigation: Head Constable Nazir Ahmed conducted a search; the deceased's chaddar was recovered from a heap of sand and, after some days, the body was recovered from the Nubal river junction. Post-mortem on 11th Jeth by Dr. Dwarka Nath found multiple ante-mortem injuries caused by a sharp weapon and concluded death was due to shock and hemorrhage; there were signs of life at the time of drowning. The accused was arrested, kept in judicial lock-up, and a confession was recorded by the Magistrate on 20th Jeth; the accused later retracted the confession.

Procedural history: The accused was committed to Sessions on a charge of murder, convicted by the Sessions Judge (who relied on the accused's confession and other evidence), and sentenced to death. The matter reached the present Court on appeal and for confirmation of sentence.

Legal Issues Presented

  1. Whether the confession(s) attributed to the accused (both extra-judicial and the confession recorded by the Magistrate) were voluntary and admissible, and if a retracted confession could safely support a conviction.
  2. Whether the prosecution produced independent and sufficient corroborative evidence to connect the accused to the murder beyond reasonable doubt.
  3. Whether the circumstantial evidence relied upon (last seen with the deceased; recovery of the chaddar; alleged motive) established guilt to the required standard.
  4. Whether the evidence of certain prosecution witnesses (those alleging extra-judicial confession and the witness who claimed to have seen the accused push the dead body into the river) was reliable and could be accepted.

Arguments of the Parties

Prosecution's Arguments

  • The State placed great stress on the fact that the accused was last seen in the company of the deceased, arguing that this circumstance supported the inference of guilt.
  • The Sessions Judge relied on the confession recorded by the Magistrate and on circumstantial facts such as the recovery of the deceased's chaddar during the search as corroborative material.

Defence's Arguments

  • The accused retracted the confession and contended that the confession recorded before the Magistrate was made under police pressure and was therefore involuntary.
  • The defence pointed to lack of direct evidence and argued that the circumstantial evidence (including the last-seen together fact and the chaddar recovery) did not sufficiently connect the accused to the murder.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court undertook a careful examination of the material evidence and the judicial findings, proceeding in the following manner:

  1. Evaluation of extra-judicial confession witnesses: The Court reviewed the testimony of Ahad Ganai and Khawaja Rasul (who deposed to an extra-judicial confession on 5th Jeth). It found their evidence unreliable because the first information report (lodged on 6th Jeth) made no mention of such a confession. The Court held that had an extra-judicial confession been made, it would likely have been reflected in the FIR; the absence of such a note led the Court to conclude these witnesses' evidence was false and could not be relied on.
  2. Assessment of the witness who claimed to have seen the accused push the body: The Court found Sultan Mir's testimony unconvincing because he did not disclose this observation to anyone until summoned by police long after the event; the Sessions Judge had correctly rejected this evidence.
  3. Treatment of the confession recorded by the Magistrate: The Sessions Judge relied on the Magistrate-recorded confession, though it had been retracted by the accused at the earliest opportunity. The Court reiterated the established precaution that a retracted confession, while not ipso facto inadmissible, requires independent corroboration linking the accused to the crime.
  4. Comparison of confession content with medical evidence: The Magistrate-recorded confession stated the accused had thrown Wali Mir into the river and placed his leg on his neck until death. The Court noted the confession made no admission of inflicting the multiple sharp-weapon injuries found at autopsy. The medical evidence showed several ante-mortem sharp-force injuries causing shock and hemorrhage. The omission of any admission of such injuries in the confession cast doubt on its completeness and reliability as a true account of the crime.
  5. Examination of alleged corroborative evidence: The Court analyzed the recovery of the chaddar (the deceased's garment). It found the recovery list did not state that the chaddar was recovered at the instance of the accused, and the chaddar had been found during the search before the accused's arrest and well before his Magistrate-recorded confession on 20th Jeth. Thus, even if the chaddar had been recovered at the accused's pointing, that recovery could not properly corroborate a confession recorded later; in fact, the record did not support that the accused pointed it out.
  6. On the "last seen" circumstance and burden of proof: The Court acknowledged that the accused had been last seen with the deceased and that this circumstance raises strong suspicion. However, it emphasized the established principle (as applied by the Court) that mere suspicion or the fact of being last seen together, without additional connecting circumstances, does not suffice for conviction. The prosecution bears the burden of proving every link in the chain of evidence; being last seen together without further corroboration is insufficient to establish guilt beyond reasonable doubt.
  7. On motive: The Court considered the alleged motive (dispute over land/share). It found that after the Panchayat award, the accused had accepted a share in the house and Kothar and appeared to have been on good terms with the deceased (even arranging his marriage). The Court concluded that any grievance was not of a nature strong enough to constitute a convincing motive for such a heinous crime.
  8. Overall assessment: Considering the unreliability of the extra-judicial confession witnesses, the unconvincing account of the independent witness who claimed to see the accused push the body, the lack of corroboration for the retracted confession, the disconnect between confession and medical evidence, and the insufficiency of motive, the Court found that the prosecution had not established the charge of murder against the accused to the requisite standard.

Holding and Implications

Core Ruling: The Court allowed the appeal, set aside the conviction and sentence, and directed the release of Samad Malik forthwith unless he was required in connection with some other charge. The opinion concludes succinctly: "Conviction quashed."

Implications for the parties: As a direct consequence, the accused's conviction and death sentence were quashed and he was to be released immediately unless held for other matters. The decision reversed the Sessions Judge's conclusion and removed the capital punishment imposed on the appellant.

The opinion does not discuss any broader legal precedent being established; it confines its reasoning to the facts and evidentiary deficiencies in this particular case.

Show full summary ...

    Samad Malik v. State

    Wazir, C.J.:-

    Samad Malik has been found guilty of the murder of one Wali Mir s/o Jabban Mir resident of Pandit-Pura, Tehsil Handwara and under S.302, Ranbir Penal Code, has been sentenced to death. He has appealed against his conviction and sentence and the case is also before the Court for confirmation of the sentence.

    2. The facts of the case are given in great detail in the judgment of the Learned Sessions Judge and need only be briefly recaptulated here.

    3. Wali Mir deceased was the son of Jabbar Mir. The accused Samad Malik is the son-in-law of Jabbar Mir. He was made Khana Damad and was residing in the house of his father-in-law Jabbar Mir who had executed a document in his favour by which he had given him half share in his immoveable property. Jabbar Mir died during winter of S.2008. Samad Malik was away in the Punjab at the time of the death of his father-in-law. On hearing the news of his death he returned home. He asked for his half share in the immoveable property left by Jabbar Mir but his mother-in-law, Mst. Farzani, refused to give him share in the land and wanted to retain the whole of land for her son, Wali Mir deceased. The matter was referred to the Panchayat and the members of the Panchayat decided that Samad Malik should get half share in the house, the Kothar and the vegetable garden and should not demand any share in the land left by Jabbar Mir as he had already got some land from his own father. It is alleged that Samad Malik accepted the award given by the Panchayat and agreed to have a share in the house and the Kothar only. It is further alleged that for some time he was not willing to cultivate the land belonging to his father-in-law but at the insistence of his mother-in-law he cultivated the land. On the 3rd of Jeth 2009 he asked his mother-in-law to allow Wali Mir, her son, to accompany him so that they may both go to the fields and take the woods out. Wali Mir accompanied Samad Malik and they both went to the fields. After some time Samad Malik came back alone. He asked his mother-in-law as to where Wali Mir was. She replied that he should know better as Wali Mir had gone with him. The mother began to search for the boy and she asked some neighbours also to look for the boy. The accused Samad Malik, it is alleged, told his mother-in-law that a Fakir had taken fancy to the boy and he might have gone with that Fakir. The villagers began to search for the boy but could not trace him. On the 5th of Jeth the accused is alleged to have confessed before Ahad Gansi, the Deh president and Khawaja Rasul Numberdar that he had murdered the boy and had drowned him in the river. On the 6th a report was lodged in Thana Handwara.

    4. Nazir Ahmed Head Constable who was on some other duty repaired to the scene of occurrence and started investigation. He conducted the search for the body of Wali Mir which could not be found. During the search the chaddar which the deceased was wearing was recovered from underneath a heap of sand. The search went on and after some days the dead body was recovered from the junction of the river called Nubal. It was sent for post mortem examination and on the 11th Jeth Dr. Dwarka Nath, Medical Officer Handwara, performed the autopsy. The Head Constable came to the village and arrested the accused. He was called on some other business by the Inspector General of Police and another Officer Mr. Sri Kanth Sub-Inspector of Police arrived in the village on the 16th and took charge of the investigation. He seized the clothes of the accused as he found some blood stains on them.

    5. The dead body was identified by Qadir Mir, the uncle of the deceased. Dr. Dwarka Nath found the following injuries on the person of the deceased:

    "1. A circular wound nearly 2½" in diameter over the left side of chest above the nipple. The skin and the muscle below were absent in this area down to the ribs.

    2. A 3½" in area oval gap in the abdominal wall on the right side corresponding to the 8th, 9th or 10th rib. The intestines were protruding from this gap.

    3. An incised wound 1" long ½" deep ½" wide near the external and of right clavicle.

    4. Ecchymosis of the right side of the forehead above the eye and also of the right upper and lower eye-lids."

    In his opinion the death of the deceased was caused by shock and haemorrhage due to the injuries which he had already received. He further stated that the deceased had some signs of life when he was drowned. According to the doctor all the injuries were ante-mortem and were caused by some sharp weapon.

    6. The accused is alleged to have made a confession before the police and he was produced before the Tehsildar Magistrate First Class Handwara for recording his confession. The Magistrate ordered that the accused should be kept in the judicial lock-up before his confession is recorded. The accused was kept in the judicial lock-up in Baramulla and was produced before the Magistrate on the 20th of Jeth for recording the confession. The Magistrate, after complying with the necessary formalities required by law, recorded the confession of the accused. The accused was committed to Sessions on a charge of murder.

    7. There is no direct evidence in this case. The evidence consists of this fact that the accused was last seen in the company of the deceased, that the deceased and the accused went together towards the river and the accused came home all alone. There is the evidence of Mst. Farzani that the accused asked her to permit her son to go with him. They both went together. There is the evidence of Mahad Mir and Wahab Mir who stated that they saw the accused and the deceased going towards the river. They enquired from them and were told that they were going to catch small fish in the river. Mst. Mukhti, the wife of the accused, stated that her husband had remarked that he would not allow Wali Mir to get any share of the land left by Jabbar Mir, his father but she did not attach much importance to this remark as her husband, Samad Malik, was trying to make arrangements for the marriage of Wali Mir. Qadir Mir has appeared as a prosecution witness and from his statement it appears that Samad Malik accused was reluctant to cultivate the land as he was not given his share in the land which was given to him by his father-in-law but the Panchayat had decided that he should get share in the Kothar and the House and give up his share in the land in favour of his brother-in-law Wali Mir. Another witness has been produced by the prosecution, Sultan Mir, who stated that he saw with his own eyes the accused pushing away the dead body into the river with a stick. There are two other prosecution witnesses Ahad Ganai Deh, President and Khawaja Rasul Numberdar, who have deposed that the accused made extra-judicial confession before him admitting his guilt.

    8. The learned Sessions Judge has discussed all the evidence which has been produced in this case and has not believed the testimony of Ahad Ganai and Khawaja Rasul who are witnesses of extra-judicial confession.

    9. We have carefully gone through the testimony of Ahad Ganai and Khawaja Rasul and we find that their evidence cannot be relied upon. According to these witnesses the accused made extra-judicial confession before them on the 5th of Jeth, two days after the occurrence. The first information report was lodged on the 6th of Jeth and there is no mention of the fact that the accused had confessed having murdered the deceased. If the accused had actually confessed his guilt before these two witnesses it was expected that this confession would have found place in the first information report. In view of the fact that there is no mention of this fact in the first information report the evidence of these witnesses is false and, therefore, cannot be relied upon.

    10. The evidence of Sultan Mir also is by no means convincing. According to him he saw the accused pushing off the dead body into the river. It is strange that he did not mention this fact to any one till he was called by the police long after the occurrence when he came out with this important information. His evidence is unreliable and has been rightly brushed aside by the Sessions Judge.

    11. The learned Sessions Judge has relied upon the confession of the accused which was subsequently retracted by him before the committing Magistrate and before the Sessions Judge and also on the fact that the accused was last seen with the deceased on the fateful day of occurrence. He has further been impressed by the fact that a Chaddar was recovered from a heap of sand at the instance of the accused which was worn by the deceased on the day he was done to death.

    12. It is necessary to give in detail the so-called confession made by the accused before the Magistrate at Handwara. In the confession the accused has stated that he threw Wali Mir in the river and placed his leg on his neck till he breathed his last.

    13. The accused does not mention that he inflicted injuries on his person with a sharpedged weapon and then threw him in the river till he died. We have it from the medical evidence that the accused had a number of injuries on his body which were caused by a sharp weapon and all these injuries were ante-mortem. The accused has not admitted anywhere in the confession that he inflicted injuries on the body of the deceased. Moreover the accused has stated that under police pressure he made the statement before the Magistrate at Handwara confessing his guilt. He completely denied having committed the offence.

    14. There is, therefore, retracted confession of the accused before us and we have to see whether or not his confession is voluntary. It is not illegal to base conviction on a retracted confession but the rules of prudence require that a retracted confession must be corroborated by independent evidence connecting the accused with the crime. We have to see whether the confession receives any corroboration by any independent evidence adduced in this case.

    15. There is no doubt evidence to show that the accused and the deceased went together towards the field on the fateful day. There is further evidence of Mahda and Wahab who stated that they saw the accused and the deceased going towards the river. But this evidence is not sufficient to connect the accused with the commission of the crime. Great stress has been laid by the counsel appearing for the state that as the accused was last seen in the company of the deceased that fact alone should justify the inference that the accused was responsible for the murder of the deceased. The burden of establishing guilt of the accused is throughout on the prosecution and the prosecution must prove every link in the chain of evidence against the accused from the beginning to the end. When two persons are seen together and shortly afterwards one of them is found to have been murdered it cannot be inferred positively that his companion is responsible for the murder of the deceased unless there are other circumstances to support that inference. No doubt the circumstance that the deceased was last seen in the company of the accused raises a strong suspicion against the accused but mere circumstances of suspicion without more conclusive evidence are not sufficient to justify conviction of the accused.

    16. In this case we have to see what are the other circumstances which connect the accused with the crime. As pointed out above the accused has made a confession which he retracted at the first opportunity when he was put on trial. He has given a cogent explanation that the confession was extorted from him under Police pressure. The retracted confession is not corroborated by any other independent evidence. The learned Sessions Judge has taken into consideration the recovery of a Chaddar from underneath a heap of sand. We have examined the recovery list and we find there is no mention in the list that the Chaddar was recovered at the instance of the accused. There is no reliable evidence to show that the Chaddar was recovered at the pointing of the accused. The evidence is to the effect that a certain Chaddar in the course of search for the body was recovered from the sand. That recovery does not connect the accused with the commission of the offence. I fail to see how the Sessions Judge has attributed the recovery of Chaddar to the information supplied by the accused. Moreover it appears that the Chaddar was recovered long before the accused was arrested and the confession of the accused was recorded on the 20th of Jeth long after the recovery of the Chaddar. The recovery of Chaddar even if it had been at the instance of the accused could not form a corroborative piece of evidence of the retracted confession.

    17. Much stress was laid on the motive which induced the accused to commit this crime. It is stated that the accused wanted to avenge upon Mst. Farzani for not having given to him the share which he got by virtue of the gift deed executed in his favour by his father-in-law. There is no doubt some evidence to show that Mst. Farzani did not agree to part with half portion of the share in the land to the accused but after the decision of the Panchayat which was accepted by the accused it does not appear that the accused had any ill feelings towards his mother-in-law. Even if he felt a little aggrieved we do not think it would be such a strong motive as would induce him to commit such a heinous crime especially when he was so well disposed towards Wali Mir deceased that he was making arrangements for his marriage.

    18. Taking all the circumstances into consideration we do not think that the prosecution has made out a charge of murder against the accused. We, therefore, accept the appeal, set aside his conviction and sentence and direct the release of Samad Malik forthwith, unless required in connection with some other charge.

    Conviction quashed.

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    Comments

    Samad Malik v. State
    (Oct 9, 2009)