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2013 DIGILAW 719 (JK)

Sameena (Mst. ) v. State Of J&K

2013-12-11

JANAK RAJ KOTWAL, Virender Singh

body2013
Per Virender Singh, J. 1. Our Judgment would dispose of aforesaid two criminal appeals filed by Mst. Sameena wife of Mohd. Altaf Lone resident of Kawmohalla, Khanyar, Srinagar and Bashir Ahmed Sheikh son of Abdul Rehman Sheikh resident of Naseema Bagh, Srinagar against the conviction and sentence awarded to them vide impugned judgment of learned Principal Sessions Judge, Srinagar (for brevity `Trial Court') dated 28th of February 2012 for the offences punishable under sections 364, 376, 302, 201 read with section 120-B of Ranbir Penal Code (for short "RPC") in case FIR No. 77/2005, registered at Police Station Khanyar and Criminal Reference sent by learned Trial Court of this Court for confirmation of the sentence in terms of Section 374 of Code of Criminal Procedure (for short "Cr. P.C."). 2. The sentence awarded to accused Bashir Ahmad Sheikh is as under: a) To undergo life imprisonment which shall extend to full life for the commission of offence under Section 302 RPC read with Section 120-B; b) To undergo rigorous imprisonment for a term of ten years under Section 364 RPC, and a fine of Rs. 5,000/- and in default thereof accused shall further undergo rigorous imprisonment for a term of one year; c) To undergo rigorous imprisonment of ten years under Section 376 RPC and a fine of Rs. 5,000/-, and in default thereof accused shall further undergo rigorous imprisonment for a term of one year; and d) To undergo rigorous imprisonment of seven years under Section 201 RPC and fine of Rs. 1000/- and in default thereof accused shall further undergo rigorous imprisonment for a period of two months. 3. Accused Mst. Sameena is sentenced as under: a) To undergo life imprisonment which shall extend to full life for the commission of offence under Section 302 RPC read with Section 120-B; b) To undergo rigorous imprisonment for a term of ten years under Section 364 RPC, and a fine of Rs. 5000/- and in default thereof accused shall further undergo rigorous imprisonment for a term of one year; and c) To undergo rigorous imprisonment of ten years under Section 376 RPC and a fine of Rs. 5,000/-, and in default thereof accused shall further undergo rigorous imprisonment for a term of one year. 4. All the sentences, however, have been ordered to run concurrently. 5. 5,000/-, and in default thereof accused shall further undergo rigorous imprisonment for a term of one year. 4. All the sentences, however, have been ordered to run concurrently. 5. It would be worth mentioning here that one Zahoor Ahmad Wani son of Ghulam Mohi-ud-din Wani resident of Dargagh, Hazratbal, Srinagar, was also booked in this case by the police, as according to the investigation conducted in this case, he and accused Bashir Ahmad Sheikh had allegedly kidnapped Ms. Shazia (for short "deceased") and after committing rape upon her, she was killed and thrown in River Sindh at Ganderbal. He, however, committed suicide in police custody. 6. Both the accused are stated to be in jail since the date of their formal arrest as their prayer for suspension of sentence was dismissed by the Court. 7. Deceased Shazia daughter Gulzar Ahmad Tota lost her parents when she was hardly of the age of four months, as such, brought up by Mst. Jalla Begum wife of Abdul Aziz Kawa, the real sister of mother of Shazia. At the time of her death, she was studying in 12th Class. 8. On 28th April 2005, Mst. Jalla Begum approached Police Station Khanyar with a missing report of deceased Shazia, stating therein that she on 25th April 2005 had gone to the market for purchasing some domestic articles with a neighbourhood girl Sameena (accused herein), but did not return. She and her husband asked accused Sameena as to where deceased Shazia was, upon which she disclosed that she and Shazia had returned within half an hour. When Shazia could not be traced, a missing report was lodged in this regard with the concerned police station. 9. On 29th April 2005, police station Khanyar received an information through reliable source that Ms. Shazia was kidnapped by accused Bashir Ahmad Sheikh and Zahoor Ahmad Wani at Babademb Dewatering Pump in a vehicle make Tata Sumo bearing No. JK01F-3520, with an intention to commit rape and after subjecting Shazia to rape and physical assault, she was murdered and thereafter in order to destroy the evidence, her body was thrown in River Singh at Ganderbal, so as to show it to be a case of drowning. On 7th May, 2005, body of deceased Shazia was recovered from River Jehlum in the presence of certain Persons and it was handed over to police station Sumbal. On 7th May, 2005, body of deceased Shazia was recovered from River Jehlum in the presence of certain Persons and it was handed over to police station Sumbal. For want of identification and the dead body being badly decomposed was buried in Sumbal through local Auqaf. It was thereafter exhumed on 10th May 2005 by family of the deceased, after seeking permission and brought to Srinagar and buried at Rainawari Malakah. 10. A case FIR bearing No. 77/2005 came to be registered by police station Khanyar under Section 302, 364, 376, 120-B and 201 RPC. During investigation, it revealed that on 25th April 2005, accused Bashir Ahmad Sheikh and Zahoor Ahmad wani had hatched a conspiracy with Mst. Sameena and in furtherance of said conspiracy, both the male accused with the help of Mst. Sameena, kidnapped Shazia at about 7:00 P.M. in a Tata Sumo (white colour) bearing No. JK01F-3520, and thereafter at 90' Road Byepass, both the aforesaid male accused subjected Shazia to rape and physically assaulted her, which resulted into her death, and thereafter they threw her dead body in River Sindh to destroy the evidence. 11. On 28th May 2005, accused Zahoor Ahmad Wani and Bashir Ahmad Sheikh were apprehended and interrogated. During investigation, they pointed out the places of kidnapping, murder and destroying the evidence. They also made disclosure statements, pursuant to which wearing articles of deceased Shazia were recovered in the presence of witnesses. During investigation of the present case, the dead body of Shazia was re-exhumed from Malakah Rainawari Graveyard and was subjected to autopsy by a team of Doctors, which initially reserved the opinion subject to report from HP & FSL and ultimately opined it to be death caused by asphyxia, may be by suffocation. 12. Accused Zahoor Ahmad Wani while in police lockup, during intervening night of 08/09th June 2005, hanged himself in bathroom of the police lockup. 13. After completion of the investigation, both the accused were sent to face trial for the aforesaid offences, for which they were charged by the Trial Court and now stand convicted and sentenced vide impugned judgment. 14. Prosecution case hinges on circumstantial evidence only. 15. In order to prove the charge against the accused, the prosecution has relied upon evidence of the following witnesses: 1) Jalla Begum 2) Ab Aziz Kawa 3) Reyaz Ahmad Kawa 4) Gh. Mohd. 14. Prosecution case hinges on circumstantial evidence only. 15. In order to prove the charge against the accused, the prosecution has relied upon evidence of the following witnesses: 1) Jalla Begum 2) Ab Aziz Kawa 3) Reyaz Ahmad Kawa 4) Gh. Mohd. Shera 5) Ishtiyaq Ahmad Kenu 6) Fayaz Ahmad Dar HC, 7) Altaf Hussain Shah, 8) Tariq Ahmad Sub Inspector 7870/NGO 9) Gh. Rasool HC 2798/S 10) Mohd. Subhan HC No. 825/S 11) Mohd. Ismail No. 6955/NGO 12) Aijaz Ahmad Pathan 13) Dr. Balbir Kour 14) Khalil Ahmad 15) Gh. Rasool Wani Tehsildar 16) Shuhul Ahmad Kant, Assistant Scientific Officer FSL Srinagar 17) Maimona Akhter, Member CPM 18) Inspector Tariq Ahmad Khan 16. We do not feel the necessity of reproducing the evidence of all the aforesaid eighteen witnesses in detail to make our judgment very weighty unnecessarily as the same has already been depicted in the impugned judgment itself. However, while rescanning the prosecution case, the appeal being continuation of trial, we will certainly be referring to the material evidence for arriving at just conclusion of the case. 17. Heard Mr. S.T. Hussain, learned Senior Advocate appearing for both the appellants and Mr. R.A. Khan, learned Additional Advocate General, representing State of Jammu and Kashmir. 18. Mr. Hussain submits that if one looks at the impugned judgment, it appears that all what is carried out by the Investigating Agency in the present case till filing of the Challan, has been considered as chain of circumstances by the learned Trial Court for drawing conclusion of guilt against the accused and these circumstances are as many as sixty making the judgment unnecessarily too sketchy, there being not even one individual plank of any of the material circumstances, pointing towards the guilt of the accused, not to talk of completing the chain of all the material planks which is settled test for appreciating any criminal case, resting upon circumstantial evidence. He then submits that the learned Trial Court has convicted both the accused mainly on moral grounds than on any legal evidence pointing towards their guilt. 19. The foremost attack launched on the prosecution case by Mr. Hussain is that Mst. Jalla Begum, real sister of mother of deceased Shazia and her caretaker has nowhere mentioned the name of accused Mst. 19. The foremost attack launched on the prosecution case by Mr. Hussain is that Mst. Jalla Begum, real sister of mother of deceased Shazia and her caretaker has nowhere mentioned the name of accused Mst. Sameena in the missing report (EXPW-1) presented by her in police station Khanyar and when stepped into witness box made a material improvement in this regard and was duly confronted from her previous statement. However, the explanation tendered by her is that she had told the scribe vendor, who had drafted the application that Mst. Sameena had come to her house and taken deceased Shazia with her which explanation, according to learned counsel, is not worth accepting. 20. Dwelling upon his arguments, Mr. Hussain further submits that the prosecution has sought the conviction of Mst. Sameena on the basis of Section 120-B RPC vis-a-vis the offence of kidnapping punishable under Section 364 RPC and for proving this charge, the prosecution has no evidence much less convincing evidence available on record. According to learned counsel, she otherwise, cannot be even remotely connected with the commission of charge of 302 RPC, 376 RPC or even 201 RPC for the reason that the only role ascribed to her is that she being friendly with deceased Shazia, had managed her allurement with Bashir Ahmad Sheikh and Zahoor Ahmad Wani (since dead) on a particular day when both the girls left for the market to make some purchase of domestic articles. Learned counsel submits thereafter what happened to deceased Shazia and under what circumstances, accused Sameena at least, cannot be held to be responsible, there being no involvement of her. He submits that there is no evidence with regard to even handing over of the custody of the deceased to accused Bashir Ahmed Sheikh and his co-accused, therefore, the charge of section 364 RPC on the face of it is not proved qua accused Sameena, consequently other charges are bound to fall. 21. Mr. He submits that there is no evidence with regard to even handing over of the custody of the deceased to accused Bashir Ahmed Sheikh and his co-accused, therefore, the charge of section 364 RPC on the face of it is not proved qua accused Sameena, consequently other charges are bound to fall. 21. Mr. Hussain submitted that a new story of a Mobile phone of deceased Shazia has been introduced in this case with an attempt to connect accused Sameena, whereas PW Jalla Begum does not talk of carrying of any mobile phone by deceased when she had gone along with accused Sameena to the market as there is no whisper of any mobile in the initial complaint lodged by her when her husband (Abdul Aziz Kawa) was also accompanying her and the complaint was lodged after two days. Learned counsel submitted that this important fact could not escape the notice of the complainant side at all. He then contended that in this connection at one stage, PW Ishtiaq Ahmed Kenu, a chemist was also called and interrogated by PW Tariq Ahmed Khan, the I.O of the case to whom he disclosed that accused Sameena who was her customer had come to his shop to buy some medicines and at that time she was keeping a mobile phone with her and when he asked her as to whose mobile it was, she got nervous and told him that it belonged to her friend and then asked him to retain the same as she wanted to conceal this fact from her husband, therefore, he retained it and thereafter she had never come to his shop and he had been using the said mobile for making certain calls from Pulwama to ensure about the condition of his daughter who was sick and also made a call to another girl known as Rozy. The mobile of the deceased is not recovered as it was ultimately thrown by him in the river Jhelum at Fateh Kadal after he came to know that some search had begum for the same. Mr. The mobile of the deceased is not recovered as it was ultimately thrown by him in the river Jhelum at Fateh Kadal after he came to know that some search had begum for the same. Mr. Hussain submitted that Ishtiaq Ahmed Kenu is married and still keeping relations with other girls and making call to them on the mobile of deceased Shazia is a matter turning out to be somewhat fishy in nature but the fact of the matter is that mobile was not recovered from accused Sameena and for that matter not even from Ishtiaq Ahmed Kenu, therefore, she cannot be linked with this plank of evidence at all. He contended that in the present set of circumstances, bald statement of PW Ishtiaq Ahmad Kenu against accused Sameena when his own antecedents are not very clear is not worth believing, rather the evidence on record is pointing towards Ishtaq Ahmed Kenu who can be somewhat connected with the deceased and came into possession of her mobile. 22. Mr. Hussain then submitted that besides the aforesaid planks of evidence, there is no other material evidence available on record on which the prosecution can bank upon and all these planks, even if taken individually or collectively, do not point towards the guilt of accused Sameena for holding her guilty for the charges for which she now stands convicted, therefore, she deserves acquittal. 23. Advertising to the case of accused Bashir Ahmed Sheikh, Mr. Hussain submitted that the statement made by the accused before the police confessing his guilt cannot be read into evidence, whereas it appears that the trial Court has given all weightage to it. Upon their formal arrest made by the police, accused Bashir Ahmed Sheikh and his co-accused (since dead) disclosed before the police showing their involvement in the commission of offence and the manner in which they had initially taken the deceased in their car, committed bad act and thereafter killed her and then in order to screen off the evidence threw her dead body in the river. This is virtually a confession before the police, therefore, not to be read into evidence against the accused. 24. This is virtually a confession before the police, therefore, not to be read into evidence against the accused. 24. Learned counsel submitted that the only evidence left with the prosecution is the recovery of clothes and other articles of the deceased allegedly effected pursuant to the individual disclosure statement suffered by accused Bashir Ahmed Sheikh and Zahoor Ahmed Wani (since dead) on 30.05.2005 and at the instance of accused Bashir Ahmed Sheikh, a scarf and chappal were allegedly recovered, whereas pair of hair clip, Wrist Watch and Kada were recovered at the instance of accused Zahoor Ahmed Wani. One of the witnesses to the recovery with regard to Scarf and Chappal is Riyaz Ahmed Kawa, the adoptive father of the deceased, who remained all through with his wife Mst. Jala Begum right from the point of making written complaint of missing of deceased till end and when this witness stepped into the witness box, he categorically started that on 08.05.2005 when police flashed a news item in the newspaper that a dead body had been fished out from river jhelum and they went to the police station to know, the wearing items of the unidentified body were shown to them from where they could identify that it was of their daughter. Learned counsel submitted that if the prosecution case is taken as it is where the dead body was allegedly thrown in the river, it would not be believable and appealable that accused Bashir Ahmed Sheikh would remove the scarf and chappal of the deceased before throwing her in the river and keep these items with him up to 30.05.2005 so as to bring himself comfortably into the net of police. Therefore, what appears in this case is that the investigating agency subsequently planted the aforesaid recovery upon the accused so as to connect him at least with this plank of evidence. 25. Learned counsel submitted that there is otherwise no medical evidence on record to establish the charge of section 376 RPC at all. 26. Mr. Hussain thus concluded that the prosecution has miserably failed to prove its case beyond any shadow of doubt even against accused Bashir Ahmed Sheikh for any of the charges for which he now stands convicted. He thus prays for his acquittal as well. 27. Refuting the submissions advanced by Mr. Hussain, Mr. 26. Mr. Hussain thus concluded that the prosecution has miserably failed to prove its case beyond any shadow of doubt even against accused Bashir Ahmed Sheikh for any of the charges for which he now stands convicted. He thus prays for his acquittal as well. 27. Refuting the submissions advanced by Mr. Hussain, Mr. Khan learned AAG submitted that the case on hand is of such a serious nature in which a tender aged girl who was a student of 12th class has fallen prey at the hands of accused Sameena and her other two co-accused who after kidnapping the deceased subjected her to bad act and then killed her and ultimately, in order to screen off the entire evidence, threw her dead body in the river. He submits that may be certain planks of prosecution evidence are not completely established or proved, but in such type of heinous offences even one or the two planks, if found convincing, can be said to be enough for holding the accused guilty, whereas in the present case, one aspect is very clear that accused Sameena had initially taken the deceased with her from her house on the pretext of purchasing certain items from the market and thereafter deceased was not seen by her parents and ultimately her dead body was recovered, therefore what happened in between could not possibly be known to the parents of the deceased as it was the evil mind of the accused Sameena and her two other co-accused which was working, being instrumental in handling over the custody of the deceased to them for their sexual thirst/lust, therefore, neither accused Sameena nor accused Bashir Ahmed Sheikh has any escape in the case on hand, consequently their conviction and sentence as recorded by the learned trial Court deserves to be upheld. 28. Howsoever, the grave and serious occurrence it may be moral conviction has no room in the criminal jurisprudence and the present case has to be tested on that touchstone only on the basis of evidence available on record. 29. No doubt, the judgment rendered by the trial Court is very weighty running into about ninety pages, but what we find in it is that it is mostly the reproduction of evidence and less appreciation of the evidence. 29. No doubt, the judgment rendered by the trial Court is very weighty running into about ninety pages, but what we find in it is that it is mostly the reproduction of evidence and less appreciation of the evidence. What appears to us is that the learned trial court has made an attempt to reproduce the entire evidence in extenso but without diving deep into the planks of prosecution evidence for their proper appreciation Anyhow, this can be said to be an individual approach of an individual Judge dealing with a criminal case. 30. After rescanning the material evidence and for that matter the entire prosecution case in its right perspective, we are of the considered view that the prosecution has not been able to bring the guilt home to any of the two accused as none of the circumstantial evidence available on record is a pointer towards their individual guilt. We shall now be entering into a detailed discussion with regard to all the main plank of evidence while taking into account the arguments advanced by Mr. Hussain at the Bar which according to us are quite convincing and appealing. 31. One important fact which goes deep into the roots of the case is that name of accused Sameena is not mentioned in the initial report of missing lodged by Mst. Jalla Begum the adoptive mother of the deceased. No doubt, when she stepped into the witness box, she made an attempt to improve upon her statement stating that when she went to the person who scribed the complaint, she disclosed the name of Sameena but cannot tender the explanation as to why her name did not figure in the said complaint. Fact of the matter is that her husband along with her other family members had also accompanied her and the complaint was also not lodged on 28th of April, 2005 when deceased went missing, rather it was lodged on the next day when they had already contacted accused Sameena who disclosed to them that she and Shazia (deceased) came back from the market after some time and it is how the suspicion started against accused Sameena. Therefore, there appears to be no reason that if accused Sameena is one who appeared to be the instrumental in getting the deceased eloped with someone, would be spared by the parents of the deceased. No doubt, Mst. Therefore, there appears to be no reason that if accused Sameena is one who appeared to be the instrumental in getting the deceased eloped with someone, would be spared by the parents of the deceased. No doubt, Mst. Jalla stated that she was talking the accused Sameena as her daughter and did not choose to name her in the first instance, but certainly she would not forgive her when her own daughter went missing and did not come back home. Blood is thicker than water. Therefore, the improvement made by Mst. Jalla in the Court in this regard creates thick clouds of doubt in our mind vis-a-vis the involvement of accused Sameena. 32. Another aspect which assumes importance for our consideration is the theory of introducing mobile phone of deceased in the hands of accused Sameena. On this mobile phone, different calls were made and certain calls were made by PW Ishtiaq Ahmed Kenu who was initially apprehended and interrogated by the police on 29.05.2005 as stated by PW Reyaz Ahmed Kawa, the father of the deceased. Ishtiaq Ahmed Kenu is the one, who had thrown the mobile phone of the deceased in the river and on this phone only, certain calls have also been made to Mst. Rozi. We have the complete chart available on record of the calls made from the said cell phone prepared by `Bharat Cellular'. Ishtiaq Ahmed Kenu is a married person and how he was maintaining relations with certain other girls and was using mobile phone of deceased is again a very fishy and suspicious circumstance in this case. He was initially taken into custody by the police as he is one who was in the possession of mobile phone of deceased but subsequently released by the police. His bald statement to the effect that accused Sameena had given the mobile phone to him so that her husband could not know of that and he retained the same, used it also and then thrown in the river after having come to know that the police was in search of the same on the face of it cannot be said to be a clinching piece of evidence pointing towards the guilt of the accused Sameena. From all, what it appears is that the prosecution agency has made an attempt to save someone and an attempt to involve accused Sameena simply that she happened to be one of the friends of deceased upon whom suspicion started, may be for the reason that the deceased might have gone to the market with her for purchasing certain items. Suspicion, however strong cannot take the place of proof. 33. We do find weightage in the submission of Mr. Hussain to the effect that there is no convincing or clinching evidence available on record to connect accused Sameena even remotely with the charge of section 364 RPC, therefore, there cannot be any evidence which would show her connivance with her other two co-accused viz to commit the rape of deceased and then to kill her. It is the prosecution case itself that accused Sameena was seen by the complainant party on the day of missing of deceased in the evening when her parents approached her, therefore, what happened to the deceased after she eloped or went missing would not involve accused Sameena at all when there appears to be no evidence much less clinching evidence available on record to connect her even with the basic charge of section 364 RPC except that the complainant side has stated in the Court, that too by improving upon their case from the original missing report that deceased went along with accused Sameena to the market for purchasing certain items for which she (deceased) was given of Rs 20. Admittedly, there is no whisper of carrying of mobile also by deceased when she went to the market. Therefore, this piece of evidence, in our considered view, cannot be said to be enough to hold accused Sameena guilty for the charge of section 364 RPC and when seen in the light of other evidence available on record which does not bind her for the other charges viz: sections 302 read with 120-B RPC and 376 RPC, the prosecution case miserably falls on the ground qua her involvement for any of the offences. 34. After churning the entire prosecution evidence with regard to the alleged involvement of accused Sameena, it can be now safely concluded that prosecution has not been able to prove its case qua her beyond any shadow of doubt. Resultantly, she deserves acquittal of all the charges framed against her. 35. 34. After churning the entire prosecution evidence with regard to the alleged involvement of accused Sameena, it can be now safely concluded that prosecution has not been able to prove its case qua her beyond any shadow of doubt. Resultantly, she deserves acquittal of all the charges framed against her. 35. We make it clear that we are not entering into any discussion with regard to accused Zahoor Ahmed Wani as he committed suicide while in police custody and confine our discussion with regard to accused Bashir Ahmed Sheikh only who stands convicted for the offences punishable under sections 302 read with section 120-B, 364/376/201 RPC. 36. If one peruses the entire evidence available on record minutely with regard to involvement of accused Bashir Ahmed Shiekh, one finds that it is his statement or accused deceased Zahoor Ahmed Wani's statement allegedly made before the police which is involving them in the commission of offence. They are the one who vomited out everything about their involvement in the occurrence right from the stage of taking deceased into their Van (Tata Sumo) till she was thrown in the river as if they were giving photographic version to the police. This piece of evidence cannot be read into evidence against the accused being confessional statement made before the police. 37. What requires to be seen in this case is only the recovery allegedly effected on the disclosure statement of accused recorded under section 27 of Indian Evidence Act. Accused Bashir Ahmed Sheikh allegedly suffered disclosure statement on 30.05.2005 about the concealment of Chappal and Scarf of deceased in presence of SHO Tariq Ahmed and Head Constable Ghulam Rasool. Ghulam Rasool has not stepped into the witness box. Pursuant to the said disclosure statement, he got scarf and chappel recovered and in this regard, recovery memo was also prepared duly witnessed by the family members of the deceased also. 38. What is available on record is that when the parents of deceased came to know of the recovery of dead body fished out of river, they approached the police where certain clothes of the deceased were shown to them and from those items, they could identify that the same belonged to their daughter. It has no where come in evidence that the deceased was wearing scarf when she left the house. It has no where come in evidence that the deceased was wearing scarf when she left the house. Ladies scarf and chappel are the items which are very easily available in the market and this aspect one has not to loose sight of. This will not appeal to the judicial conscience which is an embodiment of reasoning that accused Bashir Ahmed Sheikh along with his other co-accused, who had dragged the deceased into Tata Sumo committed bad act and after killings her threw the body in the running water of a river in order to screen off the entire evidence so as to save themselves, would keep scarf and chappel in his possession so as to give a very easy clue to the police to arrest him comfortably. On the face of it, the present occurrence appears to have been committed in a planned manner and in this type of situation, an accused would not keep any circumstance, that too of this nature alive to bring himself comfortably into the grip of the police. Therefore, we will not find any difficulty in holding that it is a planted piece of evidence which is ultimately foisted upon accused Bashir Ahmed Shiekh. 39. Once, we do not consider the aforesaid piece of evidence as convincing and clinching in its nature pointing towards the guilt of accused Bashir Ahmed Sheikh, perhaps there is no other evidence much less convincing evidence available on record which is completing the chain of circumstances so as to hold him guilty of the commission of alleged offence. 40. Another aspect which is worth noticing here is that even otherwise, there is no evidence worth the name available on record to prove the charge of section 376 RPC qua the accused. The medical evidence does not talk of that fact and it simply reveals that the death was due to `asphyxia, may be by suffocation'. To make it out to be a case of rape, it appears that the learned trial Court has entered into its own imaginations, without there being any legal evidence available on record. Viewed thus, the charge of section 376 RPC cannot stand qua accused Bashir Ahmed Sheikh. To make it out to be a case of rape, it appears that the learned trial Court has entered into its own imaginations, without there being any legal evidence available on record. Viewed thus, the charge of section 376 RPC cannot stand qua accused Bashir Ahmed Sheikh. It is well settled proposition of law that when the case of prosecution rests upon circumstantial evidence, such evidence must satisfy the following tests: i. The circumstances form which the conclusion of the guilt is to be drawn should be fully established. The circumstances `must' or `should' and not may be established. ii. The facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. iii. The circumstances should be conclusive nature and tendency. iv. They should exclude every possible hypothesis except that one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of accused and must show that in all human probability the act must have been done by the accused." 41. We have tested the present case on the aforesaid touchstone only on the basis of evidence available on record and find that it would not be safe to hold any of the two accused guilty of the charges framed against them. Therefore, both the accused deserve acquittal. 42. Ordered accordingly. 43. The net result now surfaces is that both the criminal appeals (Cr. Appeal No. 02/2012 filed by Sameena and Cr. Appeal No. 03/2012 file by Bashir Ahmed Sheikh) are allowed by disturbing the judgment of conviction and sentence passed by learned Principal Sessions Judge Srinagar. Both the accused are acquitted of all the charges framed against them. They shall now be released from jail forthwith if not required in any other case. 44. Criminal Reference No. 01/2012 also stands answered accordingly. 45. Learned trial Court be informed of the outcome of the aforesaid two appeals and of criminal reference without any delay. Trial Court record be also remitted back to the concerned Court. 46. Disposed of as such.