Jammu & Kashmir High Court
Mohammad Abas vs < on 28 March, 2023
Bench: Rajnesh Oswal, Puneet Gupta
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 22.12.2022
Pronounced on: 28.03.2023
CRA No. 49/2013
CrlM No. 961/2022
in
CONF No. 21/2013
Mohammad Abas ...Appellant/Petitioner(s)
Through :- Mr. A. K. Shan, Advocate
v/s
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State of J&K .....Respondent (s)
't
Through :- Ms. Monika Kohli, Sr. AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
Per Oswal-J
1. This criminal appeal is directed against the judgment and order dated 18.06.2013 and 19.06.2013 respectively passed by the court of learned Principal Sessions Judge, Kishtwar (hereinafter to be referred as trial court) whereby, the appellant has been convicted for commission of offence under section 302 RPC and sentenced to undergo rigorous imprisonment for life and payment of fine of Rs. 5,000/-. The reference has also been made before this court in terms of section 374 Cr.P.C for confirmation of sentence of life imprisonment.
2. The judgment of conviction and the order of sentence have been impugned on the grounds that the learned trial court has not appreciated the evidence in its right perceptive, more particularly, when the 2 CRA No. 49/2013 c/w CONF No. 21/2013 statements of two witnesses, namely, Parvez Ahmed and Manzoor Ahmed who were family members of the deceased have only deposed against the appellant. It is also stated that the learned trial court has not considered that no independent witness was examined and further no motive was either alleged or proved by the prosecution.
3. Mr. A. K. Shan, learned counsel for the appellant argued that there was no light on spot and as such, it was not possible to identify the assailants in the darkness as they were wearing masks. He further argued that the statements of Prosecution witnesses, namely, Manzoor Ahmed and Parvez Ahmed cannot be relied in view of inconsistencies in their statements and more particularly when they were related witnesses. He laid much stress that recovery of the weapon of offence has not been proved and also F.S.L report has not been proved by the prosecution. He also argued that the Investigating Officer has not been examined by the prosecution and it has further caused a dent in the prosecution case. Mr. Shan also submitted that the whole story of the prosecution is concocted as no motive had either been alleged in the charge sheet or proved during the trial.
4. Per contra, Ms. Monika Kohli, learned Sr. AAG argued that there is direct evidence on record to prove the commission of offence by the appellant and the minor contradictions in the statements of witnesses are natural and the prosecution had proved the charge against the appellant by leading cogent evidence against the appellant.
5. Heard and perused the record.
Prosecution case:-
3 CRA No. 49/2013
c/w CONF No. 21/2013
6. The case projected by the prosecution is that on 03.06.2006, FIR bearing No. 20/2006 under sections 302 RPC and 7/27 Arms Act was registered at Police Station, Chatroo,on the basis of information received from reliable source that on 02.06.2006 at 09 p.m, three unknown militants called out Abdul Majid S/o Aziz Bhawani R/o Sigdi Bhata from his house. When he came out, he was taken 100 feet away from his house and was asked his name. Thereafter, he was shot dead. In the stampede after the occurrence, one of the militants was identified as Mohd. Abbas, code Hashim S/o Afzal Wani R/o Shetri Chatroo, who was associated with Hizbul Mujahideen (HM) organisation. During the investigation, Investigating Officer seized the empty castings of the bullets of AK rifle from the spot and also seized the bloodstained clay from spot. The Investigating Officer established the involvement of 5 militants in the commission of offence including one unknown militant. The appellant was also one of the four identified militants/accused. As the accused were not arrested, the Investigating Officer was in the process of filing charge-sheet against the accused with request to proceed against them under section 512 Cr.P.C. Thereafter, the appellant surrendered before the Army and was handed over to Police. The appellant was arrested on 15.11.2007 in FIR No. 37/2006 under sections 302, 364, 201, 34 RPC and 7/25 Arms Act and one rifle, 3 magazines, 89 rounds which were produced by the accused were seized. Investigating Officer seized the seizure memo of arms and ammunition seized in other case. After the completion of investigation, charge-sheet against the appellant was laid before the concerned 4 CRA No. 49/2013 c/w CONF No. 21/2013 Magistrate, who committed the charge-sheet to trial court. The appellant was charged for commission of offences under section 302/34 RPC and 7/27 Arms Act vide order dated 13.05.2008. One of the absconding accused, namely, Abdul Gani (accused No. 2 in the charge- sheet) was produced before the trial court on 06.08.2011 and he too was charged for commission of offences under sections 302, 34 RPC and 7/27 Arms Act vide order dated 09.09.2011. The said accused admitted the evidence already led by the prosecution and did not opt for recalling of four witnesses who were already examined by the prosecution in his absence. After the completion of prosecution evidence, incriminating evidence was put to accused in terms of section 342 Cr.P.C. The accused-Abdul Gani was acquitted. The appellant also examined three witnesses in his defence and after hearing the parties, the appellant was convicted and sentenced by the learned trial court.
7. Since, it has been urged by the appellant that there has been a wrong appreciation of evidence by the learned trial court, it would be necessary to have a brief resume of the relevant portions of the prosecution evidence.
8. PW-1 Manzoor Ahmed (Son of deceased) stated that he knows the accused, who is the resident of Shetri Chatroo. At around 09.00 PM, he along with his family members was in his house and someone from outside called his father in Gojri language. His father went out and found that accused was in uniform and was having a gun. He took his father at some distance and thereafter fired upon his father. Thereafter, they went towards the dead body of his father. Neighbours also arrived 5 CRA No. 49/2013 c/w CONF No. 21/2013 on spot. They started crying. Chowkidar informed the Police and Police arrived on spot the other day i.e. 03.06.2006. Post-mortem of the dead body was conducted and body was handed over to them. He proved the receipt of the dead body (Ex PW-MA-3), seizure memo of the clothes (Ex PW-MA-4), seizure memo of the clay (Ex PW-MA), seizure memo of blood-stained clay (Ex PW-MA-1), seizure memo of the dead body (Ex PW-MA-1) and seizure memo of the castings of the empty bullets recovered from spot (Ex PW-MA-2). At the time of occurrence, the appellant was accompanied by other accused persons having guns. His statement was recorded by police on 03.06.2006. During cross- examination, he stated that he did not recognize the voice from outside but the voice was in Gojri. The accused (appellant) is a Kashmiri Muslim. When his father went out, he accompanied him. He was about 10-15 feet away from the place of occurrence. The electricity was on and there was light when the accused fired at his father. He was on spot and had seen the occurrence with his eyes. When the accused took away his father, he (witness) was asked to stop at some distance. There were three other accused persons along with the accused. All the accused were in uniform and partly masked. Accused was known to him prior to occurrence and he was not masked. The accused ran away after firing. They raised noise when accused took away his father. He has no enmity with accused present in court. NOTE: It transpires that the custody memo of the dead body and seizure memo of blood stained clay have been given same exhibit Nos. i.e. (ExPW-MA-1) 6 CRA No. 49/2013 c/w CONF No. 21/2013
9. PW-2 Ghulam Mohd. Bhatt (Chowkidar) stated that he knows the accused but he does not reside in the area of his supervision. On 02.06.2006 at about 09.00 P.M, he heard noise in the Mohalla and went there. He saw the dead body of Abdul Majid lying at a distance of 100 feet from his house. He had heard that militants killed the deceased. He immediately informed the Police Station, Chatroo. The police came on the second day. The dead body was handed over to his kins. He proved the receipt of dead body (Ex PW-MA-3). He did not see the accused on spot as he reached after sometime. Family members might have identified the accused. His statement was recorded on spot. During cross-examination, he stated that he had heard the noise but not the sound of firing. Few people had accompanied him to spot. He did not see anyone running away. It was dark there and people were sitting there after lighting Deeni. The son of deceased i.e. Manzoor Ahmed was there. Other family members were also there. People did not disclose to him the names of militants but they were saying that militants had killed the deceased. He had lodged the report with the police that unknown militants killed the deceased.
10. PW-3 Parvez Ahmed (son of deceased) stated that on 02.06.2006 at around 08:15 PM-08:30 PM, he was in his home. Accused Mohd. Abbas came at a distance of three feet from his home. His mother, brother, sister and father were also in the home. On hearing a call to come out, his father went out. Then firing took place and there was burst of bullets at the chest of his father. There were four accused. Amongst them, he identified one only i.e. the accused. After killing his 7 CRA No. 49/2013 c/w CONF No. 21/2013 father, the accused ran away. He had seen the weapon with the accused but he expressed ignorance as to whether the other accused were having weapons/ammunition or not. He had himself seen the accused firing at his father. When they came out and went to their father, the father had already died. He does not know why the accused killed his father. Thereafter, Police came and recorded his statement on 03.06.2006. The accused were associated with Hizbul Mujahideen organisation. The occurrence took place in his presence and his elder brother Manzoor Ahmed was also on spot. During cross-examination, he stated that he had not gone to Kishtwar on the day of occurrence. The doors and windows of their house were open when the accused came outside their house. He was sitting in the kitchen. The main gate is at a distance of 4- 5 feet from the kitchen. The dusk had fallen outside. After hearing the sound of firing, he went out along with the other family members. They were afraid when their father was killed by the accused. Militants were not wearing masks. He knew that the accused were Hizbul Mujahideen militants. The accused was also related to them.
11. PW-4 Mohd. Shareef stated that he was posted as Investigating Officer with Police Station, Chatroo in the year 2006. Investigation of the FIR No. 20/2006 was handed over to him. He went on spot and prepared the site plan and seized the dead body of Abdul Majid. He had also seized the empties of AK 47 from spot. He also seized the sample and blood-stained clay. Post-mortem of the dead body of the deceased was conducted and he seized the clothes of the deceased. There were bullet injuries on the body of the deceased. Dead body of the deceased 8 CRA No. 49/2013 c/w CONF No. 21/2013 was handed over to him. He also recorded the statements of 2-3 witnesses on spot whose names were Manzoor Ahmed, Parvez Ahmed and Ghulam Mohd. He identified the papers prepared by him. It transpired in his investigation that 5 militants including Mohd. Abbas and Ghulam Hussain called out Abdul Majid on 02.06.2006 at 09.00 PM and took him away at some distance where he was shot dead. Thereafter, the investigation was not conducted by him as he was transferred. During cross-examination, he stated that he was handed over investigation at 09:15 on 03.06.2006. He immediately proceeded for spot when investigation was handed over to him. He reached on spot at 01-01:30 PM. Number of people were there on spot including the eyewitnesses. Who gave information in the Police Station was not known to him but it was from a reliable source. He had recorded the statement of Chowkidar also on spot. Chowkidar had made statement that he had heard that militants had killed Abdul Majid. Empty castings of the bullets were lying around the dead body. Statement of Ghulam Mohd. was recorded on spot.
12. PW-5 Dr. Mohd. Latif stated that on 03.06.2006 he was posted as M.O PHC Chatroo and had conducted the autopsy of the deceased namely Abdul Majid S/o Aziz Bhoni, age 47 years R/o Sigdi BhataTeh. Chatroo. On examination he found the following injuries on the dead body of the deceased:
1. Firearm injuries wound of entry from right side of neck measuring 2"x1" margins inverted.9 CRA No. 49/2013
c/w CONF No. 21/2013
2. Wound of exit left side of neck 3"x3" margins everted communicating with wound of entry.
3. Wound of entry two wound of entry from abdomen and wound of exit from lower back.
4. Wound of entry left upper chest near shoulder joint and exit from left supra scalper region.
5. Lacerated wound on left wrist.
Opinion:
13. In his opinion, the deceased had died due to haemorrhagic shock and due to damage to vital organs. The certificate was exhibited as EX PW-
ML. During cross-examination stated that he had not mentioned the time of death but as rigor mortis was present, so time since death was 8- 12 hours. Alleged cause of death was firearm injury. No bullet or splinter was found inside the body of the deceased.
14. PW-6 Narayan Das Sharma proved the resealing of four packets brought before him as In-charge Tehsildar, Chatroo. He proved the resealing certificate ((Ex PW-ND). During cross-examination, he stated that he did not see the contents of the packets.
15. PW-7 Abdullah Sheikh stated that in the year 2006, he was posted as Investigating Officer in the Police Station, Chatroo. He partly investigated the FIR No. 20/2006. He got the resealing done of the articles seized. Search for accused persons was conducted. The articles were sent to FSL for examination. The accused could not be found. He 10 CRA No. 49/2013 c/w CONF No. 21/2013 recorded the statements of the witnesses under section 161 Cr.P.C. Challan was prepared by him with prayer for proceeding under section 512 Cr.P.C against the accused. In his investigation, he proved the offences under sections 302, 34 RPC and 7/27 Arms Act. During cross- examination, he stated that he did not present the challan. He expressed ignorance about the arrest of the accused. He had not gone on spot. He had recorded the statements of two witnesses Manzoor Ahmed and Parvez.
Defence Evidence:-
16. DW-1 Mohd. Shafi stated that Abdul Majid was resident of his Village. When Abdul Majid died, he (witness) was in his house. The deceased was killed by unknown person. When Abdul Majid was killed, he had gone to house of the deceased after hearing the noise. He enquired about the incident from the wife and sons of the deceased, who stated that some unidentified masked men had killed the deceased.
During cross-examination, he stated that Abbas is not related to him. He expressed ignorance about the surrender of the accused.
17. DW-2 Mohd. Irfan stated that the deceased was his cousin. When the deceased was killed, he went to the house of Abdul Majid. He was told that one Gujjar called out Abdul Majid but others could not be identified. Thereafter, they lifted the body of deceased. His family members told him (witness) that no one could be identified. During cross-examination, he stated that he was in the kitchen when firing took place. He came out from his house after 20 minutes of firing. Occurrence took place at a distance of 15-20 feet from his house. He 11 CRA No. 49/2013 c/w CONF No. 21/2013 had seen the accused prior to his marriage as he was married in the Village of the accused. The accused is not related to his wife.
18. DW-3 Mohd. Akbar stated that the deceased Abdul Majid was the resident of his Village. He was killed by an unknown assailant. He heard the sound of fire and then went to the house of deceased. When he reached there, number of people had assembled there. He enquired from the sons and wife of the deceased about the occurrence who stated that some masked persons who were speaking Gojri came there and killed the deceased. It was a night so they could not identify due to darkness. Neighbours also stated that unknown persons could not be identified. During cross-examination, he stated that he reached on spot after 20 minutes of occurrence. When he reached there, it was dark. The residents who reside adjoining the place of occurrence can only tell about occurrence. He resides at a distance of 4-5 Jareebs from the place of occurrence.
APPRECIATION:
19. The contention of the learned counsel for the appellant is that the learned trial court has not appreciated the evidence properly as only 2 eyewitnesses examined by the prosecution, were the related witnesses being the family members of the deceased and their evidence could not have been relied upon by the trial court as no independent witness was examined by the prosecution. From the perusal of the record, it transpires that PW-1 Manzoor Ahmed and PW-2 Parvez Ahmed have been examined by the prosecution to bring home the guilt of the accused. Both these witnesses are no doubt the sons of the deceased but 12 CRA No. 49/2013 c/w CONF No. 21/2013 in their depositions they have categorically stated that on 02.06.2006 at 9 PM, the deceased was called out from his home and after taking him away at some distance, the appellant fired upon their father as a result of which he died. Merely the fact that both these witnesses were related witnesses is not enough to discard their testimonies. Only requirement is that their depositions are to be examined with due care and caution. Both the witnesses were natural witnesses as the place of occurrence where their father was killed, was hardly a few feet away from their home and there is no reason to doubt their presence on spot.
20. In Md Jabbar Ali &Ors versus State of Assam reported in MANU/SC/1351/2022, the Apex Court has held as under:
"48. It is noted that great weight has been attached to the testimonies of the witnesses in the instant case. Having regard to the aforesaid fact that this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. This Court in a number of cases has had the opportunity to consider the said aspect of related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded, however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. In the case of Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381, this Court held that the testimony of such related witnesses should be analysed with caution for its credibility."
21. Further, in Rajesh Yadav &Anr. Versus State of U.P, 2022 SCC OnLine SC 150, the Apex Court held as under:
"28. A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the 13 CRA No. 49/2013 c/w CONF No. 21/2013 presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose."
22. PW-1 Manzoor Ahmed has stated that he has no enmity with the appellant whereas the PW-3 Parvez Ahmed has stated that the appellant was related to them. In the light of this evidence there is no likelihood that they have falsely deposed against the appellant, more particularly when the response to the incriminating evidence in terms of section 342 Cr.P.C is of simple denial. Both the witnesses who are the sons of the deceased would not implicate the accused falsely without any purpose so as to shield the real culprit thereby allowing him to go scot-free. In Bhaskarrao v. State of Maharashtra, (2018) 6 SCC 591, the Apex Court has held as under:
"32. Coming back to the appreciation of the evidence at hand, at the outset, our attention is drawn to the fact that the witnesses were interrelated, and this Court should be cautious in accepting their statements. It would be beneficial to recapitulate the law concerning the appreciation of evidence of related witness. In Dalip Singh v. State of Punjab, 1954 SCR 145: AIR 1953 SC 364: 1953 Cri LJ 1465], Vivian Bose, J. for the Bench observed the law as under: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often 14 CRA No. 49/2013 c/w CONF No. 21/2013 put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
(Emphasis Supplied)
23. The learned counsel for the appellant made an attempt to get the benefit of the inconsistency between the statement of these two witnesses by pointing out that PW-1 Manzoor Ahmed has stated that all the accused were in uniform and were partly masked whereas PW-3 Parvez Ahmed stated that the militants were not wearing masks. The contradiction pointed out by the learned counsel for the appellant can hardly be considered as a material contradiction particularly in view of the fact that PW-1 Manzoor Ahmed has stated that the accused was known to him prior to the occurrence and PW-3 Parvaiz Ahmed has also stated that the accused was their relative. Both the witnesses have stated in un-ambiguous terms that they had seen the appellant firing at their father. It would also be profitable to take note of the principles laid down by the Apex Court while evaluating the ocular evidence in Shahaja v. State of Maharashtra, 2022 SCC OnLine SC 88, those are as under:
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.15 CRA No. 49/2013
c/w CONF No. 21/2013 II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the 16 CRA No. 49/2013 c/w CONF No. 21/2013 witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
24. If we examine the evidence of these two witnesses on the touchstone of the principles laid down by Apex court as mentioned above, we hardly find that there is any material contradiction between the statements of these two witnesses and in fact both these witnesses have deposed about the manner in which the deceased was called out from his house in Gojri language, taken away at some distance and thereafter fired upon by the appellant. The statement of these two witnesses that deceased was hit by the gun fire is corroborated by the statement of PW-5 Dr. Mohd Lateef who has proved that there were fire-arm injuries on the body of deceased. The witnesses are not expected to possess photographic memory and to depose in a manner like replaying the video recorded earlier. Some inconsistencies are bound to occur in 17 CRA No. 49/2013 c/w CONF No. 21/2013 the statements of the witnesses as the power of observation and perception differs with different persons. The justice cannot be sacrificed at the altar of the minor contradictions and technicalities. One can imagine the trauma of the sons of the deceased, when their father was taken away by the armed militants and killed mercilessly by firing multiple bullets. The witnesses who are in awe due to presence of armed militants cannot be expected to depose in absolute consonance with each other, some inconsistencies and contradictions are but natural.
25. It was also urged by the learned counsel for the appellant that there was darkness at the place of occurrence and as such in absence of any light, identification of appellant by the abovementioned two witnesses is highly improbable. PW-1 Parvez Ahmed has clearly stated that the electricity was on and PW-3 Manzoor Ahmed stated that the dusk had fallen outside. Merely the statement that the dusk had fallen at the time of occurrence is not sufficient to prove that the witnesses could not have identified the appellant. The witnesses have not been cross- examined or even suggested that there was complete darkness due to which they could not have identified the appellant. The appellant cannot derive any benefit from the statement of PW-2 Ghulam Mohd. Butt that when he reached on spot, there was darkness at the place of occurrence and the people had lit "Deeni." It needs to be noted that he reached on spot after travelling a distance of ½ km.
26. The learned counsel for the appellant also argued that the recovery of weapon of offence has not been proved and even FSL report has also 18 CRA No. 49/2013 c/w CONF No. 21/2013 not been proved. This is a fact that the recovery of the weapon of offence has not been proved. It is stated in the charge sheet that the weapons recovered from the accused were seized in FIR No. 37/2006, when the appellant surrendered before the Army. In ordinary course it is the obligation of prosecution to prove the recovery of weapon of offence but when there is direct evidence with regard to the use of the fire arm by the appellant while killing the deceased which is duly proved by the Doctor who conducted the post-mortem, then the failure of the prosecution to prove the recovery of the weapon of offence used in the commission of offence would not be fatal to the prosecution case.
27. In State through the Inspector of Police Versus Laly @ Manikandan & Another Etc., MANU/SC/1341/2022, the Apex Court has held as under:
"7. The submission on behalf of the accused that as the original informant - Mahendran has not been examined and that the other independent witnesses have not been examined and that the recovery of the weapon has not been proved and that there is a serious doubt about the timing and place of the incident, the accused are to be acquitted cannot be accepted. Merely because the original complainant is not examined cannot be a ground to discard the deposition of PW1. As observed hereinabove, PW1 is the eye witness to the occurrence at both 9 the places. Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye witness."
(Emphasis supplied) 19 CRA No. 49/2013 c/w CONF No. 21/2013
28. So far as FSL report is concerned, it divulges that the four spent cartridges recovered were fired from AK rifle and the holes in the shirt bear fire arm discharge. The failure of prosecution to prove the FSL report would also be insignificant in view of the observations already made above.
29. Attempt was also made to belie the prosecution case by raising an argument by the counsel for the appellant that no motive was alleged either in the charge sheet or proved during the trial, therefore, the appellant deserves to be acquitted. This fact stands established by the evidence that the appellant was a militant and the militants do not kill the persons only because of enmity with them but also to create terror in the society. In the instant case, there is direct evidence with regard to the commission of offence by the appellant and motive has no role to play when offence stands proved by direct evidence. In S. Kaleeswaran v. State 2022 Legal Eagle (SC) 1265, the Apex Court has held as under:
"The Court also finds substance in the submission made by the learned counsel for the appellants that the prosecution had also failed to prove the motive of the accused for committing the alleged crime. As held in Nandu Singh v. State of M.P., though in a case of direct evidence, motive would not be relevant, in a case of circumstantial evidence, motive plays an important link to complete the chain of circumstances. In the instant case, the PW-8 Mr. Rajendran to whom the Ambassador car of the deceased was allegedly sold by the accused, had turned hostile and not supported the case of the prosecution that the money was received by the accused by selling the car to the PW-8."
(emphasis supplied)
29. None of the defence witnesses was present on spot when the occurrence took place. The defence evidence led by the appellant is also not of 20 CRA No. 49/2013 c/w CONF No. 21/2013 such nature that either punctures the prosecution case or casts doubt thereupon, as such, no reliance can be placed upon the same in light of cogent and clear prosecution evidence.
30. We have examined the judgment passed by the learned trial court. The learned trial court has rightly appreciated the evidence and in fact has considered all the contentions raised by the appellant/accused therein. We too have reappreciated the evidence and have arrived at the same conclusion as that of trial court that the appellant had intentionally killed the deceased. He has been righty convicted for the commission of offence under section 302 RPC and further has rightly been sentenced to undergo rigorous imprisonment for life and fine of RS. 5,000/.
31. The judgment and order dated 18.06.2013 and 19.06.2013 respectively passed by the court of learned Principal Sessions Judge, Kishtwar whereby the appellant was convicted for commission of offence under section 302 RPC and sentenced to undergo rigorous imprisonment for life and also fine of Rs. 5,000/- in FIR No. 20/2006 under sections 302/24 RPC, 7/25 Arms Act of Police Station Chatroo is upheld. Appeal is found to be without merit and as such the same is dismissed.
32. Reference is answered accordingly.
33. Record of the trial court be sent back forthwith.
(PUNEET GUPTA) (RAJNESH OSWAL)
JUDGE JUDGE
JAMMU
28.03.2023
Neha
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No