Jammu & Kashmir High Court - Srinagar Bench
Abdul Hameed Teeli S/O Mohammad vs State Of J&K Through Police Station on 13 September, 2023
Bench: Vinod Chatterji Koul, Mohan Lal
Sr. No. 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRA No. 9900003/2017
C/w CRREF No. 4/2016
Reserved on :15.06.2023
Pronounced on :13.09.2023
Abdul Hameed Teeli S/O Mohammad .....Appellant(s)
Ramzan Teeli R/O Kokerhama Kulgam
(presently detained in Central Jail
Srinagar).
Through :- Sh.S.T. Hussain Sr. Advocate with
Ms. Nida Nazir, Advocate
V/s
State of J&K through Police Station .....Respondent(s)
Kulgam.
Through :- Sh. Satinder Singh AAG.
CORAM:HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
J U D G M E N T
Per- Mohan Lal-J
1. Instant Criminal Conviction Appeal is directed by the appellant against the judgment of conviction and order of sentence dated 26.06.2016& 29.06.2016 rendered by the court of Ld. Pr. Sessions Judge Kulgam in file No. 75/S titled State V/S Ab. Hamid Teeli, whereby, appellant has been convicted and sentenced in FIR No. 18/2002 of Police Station D.H. Pora (i) to undergo life imprisonment and fine of ₹ 20000/- u/s 302 RPC and in default of payment of fine to further undergo imprisonment for six months, (ii) to undergo imprisonment for 3 years u/s 452 RPC, and (iii) to undergo 5 (five) years imprisonment and fine of ₹ 1000/- u/s 7/25 Arms Act for commission of offence of murder of one Nazir Ahmed Wagay @ Galwan. The trial judge has also made a reference being Cr. Ref. No. 4/2016 to this court under the provisions of Section 374 of the Code of Criminal Procedure 1973 for confirmation of the sentences.
2. Aggrieved of, and dissatisfied with the impugned judgment of conviction and order of sentence, appellant/convict has questioned their legality, propriety and correctness and has sought their setting aside on the following grounds:-
(i) that the Ld. Trial Court has acted mechanically, and if the prosecution is taken to be 100% correct, still no offence u/s 302 RPC is made out 2 CRA No. 9900003/2017 against appellant, the doctrine of double jeopardy has been violated and virtually retrial has taken place whereby accused has been prejudiced by long delay of 5 years which is violative of Article 21 of the Constitution of India;
(ii) that as per the evidence of PW-3 Mst. Rehmati (m/o deceased) & PW-4 Mst. Rafiqa (wd/o deceased) when their family members including children and others persons were taking lunch in their house on 22.02.2002 on Friday, accused came inside the house in Kitchen at 12.45 pm and started firing on deceased whereby deceased died on spot and Rafiq sustained injuries, accused fired more than 200 bullets but one injury in the stomach leading to bursting of intestine caused death of deceased, however no empties were recovered or sent to FSL, no bullet was recovered from the body which makes the prosecution case highly doubtful and concocted;
(iii) that only one injury to the kidneys resulted in hemorrhage, therefore, offence u/s 304-part (1) or Section 326 RPC is made out, and no offence u/s 302 RPC is proved against the accused;
(iv) that as per prosecution witnesses the deceased was shot from a distance of 2 feet, yet there was no tattooing or any burn injury nor was the wound at entry or exit;
(v) that the Ld. Trial Judge has totally ignored the prosecution statement of PW-8 Dr. Mohd Yousaf who has stated that there was only super facial injury near neck and there was a wound of entry on pericumbical region with exit through right renal area, intestines bursted out and bullet injury on right hand near thumb, but one injury in the stomach leading to bursting of intestine shows that the intention was only to cause an injury likely to cause the death, therefore, the crime committed by appellant/convict only falls under the purview of section 304- Part (1) and not 302 RPC;
3. Sh. S.T. Hussain Sr. Advocate appearing for appellant/convict in addition to his oral arguments, has also submitted the written arguments and has sought the acquittal of appellant/convict on the following counts:-
(i) It is argued, that the prosecution has examined 3 eye witnesses namely, PW-1 Ab. Salam Wagay, PW-2 Mst. Rehmati & PW-4 Mst. Rafiqa;
out of these three eye witnesses PW-1 Ab. Salam Wagay has turned hostile, whereas out of the other two eye witnesses only Mst. Rehmati has supported the prosecution case, but there is no other evidence regarding the appellant on file, which makes the prosecution case full of doubts, whereby the impugned judgment of conviction is liable to be set aside;
(ii) It is argued, that the blood stained clothes of Mst. Rafiqa (cousin sister of deceased) and the deceased were not seized, which points out an error on the part of investigating officer, the same by itself is sufficient to discard the genesis of the entire prosecution case;
(iii)It is argued, that prosecution has not examined any forensic expert to prove that the injury was caused by the bullet or that the bullet could have been fired from the weapon used by appellant, no blood stained earth was seized from the place of occurrence, and the same would reject the case of prosecution in it‟s entirety;
3 CRA No. 9900003/2017(iv) It is argued, that the I/O has failed to collect blood stained earth, empties were admittedly not collected from the place of occurrence, no seizure memos were prepared which indicates that investigation of the case is faulty and it clearly creates a dent in the case of prosecution entitling the accused it‟s acquittal;
4. Sh. S. Satinder Singh Ld. AAG appearing for respondent, per-contra, has supported the impugned judgment of conviction awarded by the trial court. He has drawn our attention to the impugned judgment and order to suggest that the trial court has not only given a well reasoned judgment but also buttressed it with specific reasons warranting no interference. Prayer has been made for confirmation of the sentences awarded by the trial court.
5. We have heard Sh. S.T. Hussain Sr. Advocate for appellant and Sh. S. Satinder Singh Ld. AAG for respondent. We have also scanned the impugned judgment of the trial court and perused the record. The case of prosecution is tried to be proved by (i) direct evidence of PWs 1, 3 &4 namely Ab. Salam Wagay, Mst. Rehmati, Mst. Rafiq and (ii) circumstantial evidence of PWs 6,7,8,9&10 namely Mohd Amin Misgar, Ghulam Mohammad Lone, Dr. Mohd Yousaf, HC Abdul Majid No. 62/Kgm& HC Abdul Rashid No. 05/Kgm. Appellant before the trial court to demolish the case of prosecution, has examined as many as 3 witnesses in defence namely DW-1 Manzoor Ahmed Teeli, DW-2 Jozi Akhter & DW-3 Mst. Rafiqa. Appellant had preferred this Criminal Appeal from District Jail Anantnag where he is serving his term of imprisonments, which has been registered as Criminal Appeal No. 9900003/2017,while Ld. Pr. Sessions Judge Kulgam has made a reference to this court u/s 374 Cr.pc for confirmation of conviction and sentences imposed upon the appellant vide his order dated 29.06.2016. The appeal as well as the reference shall be disposed of by this judgment.
6. To prove the case against the appellant/convict, the prosecution before the trial court has examined as many as 8 witnesses out of total listed 11 in the charge sheet. The prosecution thus examined the witnesses namely:-
PW Name Role
1 Ab. Salam Wagay Eye witness.
3 Mst. Rehmati(m/o deceased) Eye witness.
4 Mst. Rafiqa (wd/o deceased) Eye witness.
6 Mohammad Amin Misgar Witness to seizure and possession of
4 CRA No. 9900003/2017
dead body of deceased.
7 Gh. Mohammed Lone Witness to seizure and possession of
dead body of deceased.
8 Dr. Mohammad Yousaf Witness to postmortem report of
deceased.
9 HC Ab. Majid Teeli No. 62/Kgm Witness to initial investigation.
10 HC Abdul Rashid No. 05/Kgm Witness to complete investigation.
7. Before coming to the conclusion, whether prosecution has successfully substantiated charges against appellant/convict beyond hilt, we find it pertinent to give a brief resume of the evidence tendered by the prosecution witnesses before the trial court. Relevant portions of the testimonies of the prosecution witnesses can be summarized as under:-
PW-1 Ab. Salam Wagay(eye witness) in his examination-in-chief has stated that he does not know the accused. He was on spot but he does not remember whether he was on spot because occurrence is of 4/5 years back. He was sitting in the house of deceased. Some locals were also present there. It was 1.00 pm prior to the day of Eid. There was snowing. He had taken lunch, but deceased and other family members were also taking lunch. He was working in deceased's house for last 13 years. As soon as he finished the work, he left from there. The deceased‟s mother asked him to bring lunch for her. In the meanwhile, there were fire shots. Deceased died due to fire shots. Accused present in the Court was not present there. Another tall man was there. Army came on spot. He has not deposed before police. At present, he is servant of Bank chairman. Deceased was working with army. But he had not worked with the army. Some time deceased used to accompany him with him. On the request of PP, this witness was declared hostile and cross-examined by him wherein, he stated that at the time of occurrence, mother of deceased and wife were present on spot when a tall man came with rifle at the place of occurrence. When occurrence took place, deceased was still near his mother.
He heard noise of fire shots and fell unconscious. He recovered consciousness after two and half hour. In this occurrence, deceased and his cousin sister also got injured. He does not know accused who has fired shots was tall man or not, as he has not seen anything. It is not correct that he is deposing under the influence of accused. On cross examination by defence counsel, has stated that there were gun shots. Besides sister ofdeceased, Mst. Rafiqa, Mst. Aisha (sister of the deceased) were also there. PW-3 Mst. Rehmati (Eye witness, m/o deceased)in her examination-in- chief has stated that she knows the accused. Deceased was his son. He was working in CIB. Six years earlier on the day of occurrence, she was at her home. Day before Eid Ul Azuha (Arfa), she made fold handed request to the accused to let of her son, as he was her alone son, but the accused murdered him and ran away from the spot. The deceased was killed with fire shots. The accused fired so many fire rounds, resultantly, glass panes of the windows of the house were broken and the other accused namely Rafiq Wani was standing outside. Salam Chopan was also sitting with his son in the kitchen, but accused have thrown out him and her son was murdered by the accused. Deceased died on spot. Police and army came on spot and they took the dead 5 CRA No. 9900003/2017 body of her deceased son in their possession. On cross-examination, she has stated that her son was working with Ikhwan and sometimes was coming to his home. Ikhwan people were having gun with them. Salam Chopan was also working with her son in Ikhwan. There was also CDR camp where they reside. So many people have been killed with the fire shots. She was also sitting in kitchen near window. About 200 rounds of fire shots were used by them. The empty cartridges were recovered by the police. She has no knowledge which people have been killed there in the area. But his son was killed by the accused. He was not wearing uniform. Army came on spot forthwith. There was no army on the road side. Army camp was at Hanjipora about 1.55 kilometers away from their residence. Army camp was not ten kilometer from the spot. Army camp was one mile away from his house. She was unable to say whether army was available on the road or not. She has deposed before police at her residence. She is illiterate, so she has not put her thumb impression on the statement, again stated that she put her thumb impression. In her presence, police has seized empty cartridges and at that time, there was sadness, as such, she has no knowledge whether any seizure memo was prepared by the police or not. The accused is residing 2/3 villages away from their house.He was working with Ikhwan outfit. Salam Chopan was separated by the accused prior the police that accused to firing. She has told police that accused dragged out the said Salam Chopan, but it was not written by them, but police has recorded her statement at their own. Deceased was with Ikhwan on the day of occurrence. Whenever the deceased was coming to the home, he was bringing gun with him and used to come for a short span. On the day of occurrence, there was no gun with him. Salam Chopan was having gun with him. She knows the accused prior to the occurrence, but he has never come to the house before occurrence. Accused was also working with Ikhwan. The occurrence was seen by the villagers. Later on, so many people gathered there. Doctor also came on spot. Police has seized the clothes of the deceased, but later on, gave it back to them. She has no knowledge whether any seizure memo was prepared. Those clothes were not seen by her in the Court. There were three rooms of her house. Due to Friday, people used to come on the roads, as they assemble for prayer on Friday. No male member was present in house. She, her daughter-in-law and two other children were present. Deceased‟s cousin was also injured in this occurrence. She is unable to say who has reported the matter to the police. Police came on spot after ten minutes.
PW-4 Mst. Rafiqa (eye witness, wd/o of deceased) in her examination-in- chief has stated that she knows the accused. On 22ndof February, 2002, it was Friday. Her family members were taking lunch in the house, i.e., her mother- in-law, children and other persons were present. Her husband has taken meals, in the meanwhile, accused came inside the house at about 12.45 p.m. Accused Ab. Hamid Teeli came inside the kitchen, where he started firing on deceased and her cousin Rafiqa. They sustained injuries. Deceased died on spot and later on, police and doctor came on spot. After occurrence, police came on spot and recorded their statements. She has deposed same before police. Ab.Hamid Teeli and Rafiq Wani were seen by her, who had committed the offence. On cross-examination, she has stated that she knows the accused prior to the occurrence. He was working with Ikhwan group. Earlier, she did not know the Rafiq Wani. She is not remembering whether husband was linked with Ikhwan again and stated some six years earlier he was linked with Ikhwan. At that time, Ikhwan camp was at Nihama. There was no gun with the her deceased‟s husband. As per her knowledge, her 6 CRA No. 9900003/2017 husband and Salam Chopan were in the Ashore camp. There were so many Ikhwan militants in the village. Accused had killed so many civilians. On the day of occurrence, her husband has left Ikhwan outfit. It is not correct that in those days, he was working in the army. It is also not correct that those Ikhwanies who have left the gun and army was after them and militants were also after them. Police and doctor came at their house. Their house is near Police Station D.H.Pora. She is not remembering whether doctor came on spot and does not know as to how much time after they came on spot, as they were in shock. She does not know the name of the doctor. Doctor came on spot, who declared the deceased as dead. Then deceased was taken to hospital. Police and family members took the deceased to hospital. Thousands of people gathered on spot. She has no knowledge, who went for registration of case. No neighbourer recorded statement before police in her presence. Her husband has five sisters. All of are married and they were at their houses. They have been called after the occurrence. At the time of occurrence, family members, her husband and cousin Rafiqa was also there who sustained injuries on spot. She was taken to Hospital by people. She and her mother-in-law have deposed about her taking to hospital. She does not know whether it was written by police or not, but she was taken to hospital. Deceased expired in the kitchen. There were empty cartridges lying which were seized by police. Hamid Teeli entered into her house. Two militants were inside her house, but the accused Ab. Hamid Teeli had opened fire upon the deceased and killed him. It is not correct that both accused have fired. Police came to her residence but she does not remember when army came on spot. Police had prepared papers and she signed those papers. She has deposed before police. Her husband received fire injuries on foot and thigh. This is also not correct that her husband received only two bullet shots, but so many shots were received by him. There was bullet injury on the foot and thigh.
PW 6-Mohammed Amin Misgar (witness to seizure and possession of dead body)in his examination-in-chief has deposed that he knows the accused. On 22nd of February 2002, he was sitting in his house and heard noise of gun shots. He came outside his house and heard that Nazir Ahmad was killed with fire arms. Then, he went on spot and saw the dead body of deceased lying in his kitchen. Deceased‟s body was stained in blood. At that time, Mst. Rafiqa was also injured. On enquiring on spot, mother of deceased and sister told that accused Abdul Hamid Teeli has killed deceased by fire and also Mst. Rafiqa. Then police came on spot and took the dead body in their possession. Police prepared recovery memo of the dead body "Fard-Magbozgi" to which he was witnessed and it is exhibited as EXPW 9/2, it‟s contents are true and correct, he has appended his signatures on it, he identifies the same. Police recovered empty cartridges, seizure memo was prepared was on spot in his presence,is exhibited as EXPW-9/1, contents are true and correct. After that, police took the dead body for conducting post mortem and then returned back for performing last rites. Receipt of dead body was prepared, he has signed the site memo, it bears his signature, contents are true and correct and it is exhibit as EXPW-9/3.On cross examination, has stated that Nazir Ahmad Wagay was in his relation. His house is one kilometre away from the house of deceased. Prior to day of occurrence, he used to go to the house of deceased. House of deceased was consisting of one storey comprising of three rooms. On entering into house, there is kitchen on left side and opposite to the kitchen, there was a room and in between kitchen and room, there was a space in the shape of lane (corridor). Site Map EXPW-9 regarding kitchen 7 CRA No. 9900003/2017 marked as „X‟ and room is marked as „A‟ in between, there is corridor and as per spot map, it is correct. Police came on spot after ten minutes. Till then, they had not touched the dead body. When he reached on spot, dead body of the deceased was lying on floor of the kitchen and there was lot of blood. When he reached on spot, blood was oozing from the injuries of deceased. Deceased was fired on floor. When he reached on spot, Mst. Rafiqa was also in injured condition. Before police came on spot, injured Rafiqa was taken to hospital by people. He is not remembering on which side of the dead body, Mst. Rafiqa was lying. Dead body of the deceased was taken by police from the spot. Blood was not removed or cleaned from the floor. He has no knowledge whether police had torn clothes of deceased. Police has conducted photography of the deceased on spot. Photos were taken on spot, where dead body was lying and where he received gun shots. Police came on spot and first of all, they took the photography of the deceased and photo of the room was also taken. Dead body was brought from the kitchen and then it was kept in another room "A" and photography of that room was also taken. Police has also taken photograph of the place, where deceased received bullet injury in the kitchen on the floor. There were signs of gun shots on the wall of kitchen. He has neither seen empty cartridges in the Court today nor was it shown to him. He didn't go the hospital alongwith the dead body. Dead body was handed over to them after conducting postmortem. He has seen injuries on the body of the deceased. When police took the dead body from the spot and kept in a room on mattress. Whether mattress was blood stained, he does not know. It is not mentioned in statement under Section 161 Cr.PC that he was informed by wife, mother and sister of the deceased that accused present in the Court has fired upon the deceased. It is not correct and wrongly mentioned in statement u/s 161 Cr.PC. He has heard on spot that Nazir Wagay was fired upon. Police has recorded his statement after 2/4 days. Perhaps his statement was taken on 28th of February, because the family members were performing 4th day. Police also came on spot next day of occurrence, but they have not taken any signatures on any paper. He went to Police Station two times, i.e., on the day of occurrence to take the dead and then 28th of February and he put his signatures on some papers. He is illiterate. He is not remembering who was the I/O at that time. PW-7-Gh. Mohammed Lone(witness to seizure and possession of dead body) in his examination-in-chiefhas deposed that accused is known to him. On 22nd of February 2002, at 1 p.m, he was sitting at his shop and heard noise of gun shots, and in the meantime, he started going towards his house. When he reached near his house, he heard that deceased Nazir Ahmad Wagay has been killed. Thereafter, he went to the house of deceased, where the deceased was killed with fire arm and Mst. Rafiqa, who happens to be the relative of the deceased was also injured. Then police came on spot and they took the injured to the hospital, dead body of the deceased was also taken from the spot to hospital for conducting postmortem. In this regard police prepared Fard Magbozgi of the dead body, contents of which are true and correct, it bears his signature and is already exhibited as EXPW-9/2. Police also seized five empty cartridges from the spot and prepared the seizure memo, he identifies his appended signatures on it and the same is already exhibited as EXPW-9/1. Post-mortem of the dead body of the deceased was conducted by the police and after conducting post-mortem, dead body of the deceased was handed over to the next kin of the deceased. In this regard, police had prepared a receipt. He has put his signatures over the receipt, contents of receipt are true and correct and it is exhibited as EXPW-9/3. He was told by 8 CRA No. 9900003/2017 the relatives of the deceased that deceased was killed by the accused-Ab. Hamid Teeli. On cross examination, he has stated that he knows Mohammed Amin Misgar, who is his relative. Deceased was also his relative. His statement was recorded u/s 161 Cr.P.C to this extent. It is not correct that he heard that Nazir Ahmad Wagay was killed by unknown gunmen. He has not stated such statement before the police. On the day of occurrence, he was residing separately in his house, though he remained a Khanadamad in the house of deceased, yet he was separated prior to the day of occurrence. His house is also near the house of deceased, again stated near the house of Rasheed Wani. The said Rasheed Wani was residing in his house. It was not mentioned that which family member of the deceased told him that deceased was killed by Abdul Hamid Teeli. The name of his wife is Mst. Aisha. She was present at the time of occurrence. But wife and PW Amin Misger were not present on spot. He has seen Mohammad Amin Misger on spot. He does not remember as to when he reached on spot. When he reached on spot, there was gathering of people. The shop, on which he was sitting, is half of kilometer from the place of occurrence. Site map is marked as „X‟ and the room is marked „A‟. There is a corridor between the two rooms, which was shown in the site map. He has accompanied the dead body to the hospital. He has no knowledge as to how many neighbourers were present on spot. So many people have assembled on spot. He has seen the seized empty cartridges which were seized as per EXPW-9/2. These cartridges were not shown to him. When police reached on spot, they took the dead body from the place Mark „A‟ and Mark „X‟ room mentioned in the site map. He has no knowledge how many bullets were received by the deceased. When police came on spot, injured Rafiqa was also inside the house. She was in lawn. Police has got the photographs of the deceased on spot and then photographed room also. Body of deceased was lying on the floor and after came police on spot. Photographs were taken of the place, where the dead body of the deceased was lying on floor. After occurrence, he remained at the house of deceased for six days. He has no knowledge as to what proceedings were conducted by the police. He did not go to D.H. Pora Police Station. After the occurrence, perhaps he remained 10 to 12 days at the house of deceased. He is does not remember that after occurrence of 5/6 days how many papers were signed by him. He is also not remembering whether he signed exhibit EXPW-9/1, 9/2 and 9/3 prior to recording his statement or after that. Police has not shown him the empty cartridges. When he reached on spot, blood was oozing from the injuries of the dead body. Even blood was oozing, when dead body of the deceased was taken to another room. Dead body was kept on "mattress". He is not remembering whether the same "mattress" was seized by the police or not. The dead body was taken to D.H. Pora Hospital. He has no knowledge whether clothes were worn by the deceased, which were having blood stains were seized by police or not. Police has not seized anything after six days. He is not remembering whether police has recorded statement of his wife or not. He has not told the police that Mst. Aisha was present on spot and she was having knowledge of occurrence. When he reached on spot, there were marks of firing on windows, walls and on the left side of the room/kitchen, there were also marks of bullet shots towards east side and another side of kitchen windows. This is correct that dead body was taken to Mark „A‟, which was shown in the police site map. There were also blood stains on the floor. This is also correct that at mark A (room) there were also blood stains and in mark „B‟ of the room, occurrence of firing took place, where the deceased fell down. This mark B (room) shown in the site map were having marks of bullets on the 9 CRA No. 9900003/2017 walls and windows. Deceased Nazir Ahmad Wagay was not connected with "Ikhwan", but he was working at home. He used to visit to the house of deceased prior to day of occurrence. He has knowledge of the house of the deceased. He knows how many rooms the house of the deceased was comprising. Mark „A‟, which was shown in the site the map is not on the opposite side of room/kitchen Mark „X‟.
PW-8 Dr. Mohammad Yousuf (witness to the post-mortem report) has conducted the post-mortem of deceased and has tendered evidence before the trial Court in the following manner:-
"Stated that on 22nd Feb., 2002, I was posted as Assistant Surgeon at Primary Health Centre (now Sub-District Hospital, D.H. Pora) and on the said date, I have examined the dead body of Nazir Ahmad Wagay S/o Sonaullah Wagay R/o Raghal aged about 25 years brought by SHO Police Station D.H. Pora at about 3 pm and on external post-mortem appearance, I found the following Injuries;
Wound at anterior aspect of Neck, meaning thereby bullet injury bruised area, the fire arm passed through superficially.
A wound of entry on Pericumbical region with exit through right renal area, intestines bursted out.
A bullet injury on right hand near thumb.
After examining the dead body, I have opined circumstances leading to death by fire arm injury, leading to massive haemorrhage Cardio Pulmonary arrest and death and I have given my medical opinion with regard to the injuries found on the body of the deceased and cause of death on the back side of the injury form. The medical certificate is in my hand written and bears my signature, same is identified be me. It is marked exhibit EXPW- MY/1. I have also conducted the post-mortem of the deceased on the same date at PHC D.H. Pora. In autopsy report, I have also mentioned injuries as fire arm injuries, leading to massive haemorrhage, leading to cardio pulmonary arrest and death. Appearance of the body has been mentioned as stout, scars nil, tato marks nil, amount of hairs thick colour blackish, rigormortis "+", which means beginning, ribs intact, no fracture, cartledges intact. Finally, I have come to the conclusion that cause of death was bullet injuries leading to haemorrhage leading to trauma vital organs leading to cardio pulmonary arrestultimately leading to death. The post-mortem report on the File is in my hand written and bears my signatures and seal. I have identified the Signatures. It is marked exhibit EXPW-M-Y/1. The ultimate cause of death of the deceased Nazir Ahamd Wagay was due to fire arm. On the said date, I have also examined Mst. Rafiqa W/o Mohammad Amin Mir Aged 28 years, approximately brought by H/C-Ab. Ahad No.75/KGM of Police Station D.H. Pora, who was in injured condition and found following injuries:-
Fire arm injury on left thigh and ankle, Haemostas is achieved. Thereafter I advised some medicines provided the first aid and referred the patient to District Hospital for further treatment. I have not given any final opinion regarding the nature of injuries found on the body of the injured lady and have kept my opinion reserved. To 10 CRA No. 9900003/2017 that extent, I have issued my certificate, same is in my hand written and bears my signatures to that extent only. It is marked as EXPW- M-Y/2. No further question was asked. On cross examination by the defence counsel, witness stated that it is not mandatory that a doctor should have been expert in the field of autopsy or post- mortem and it is true that the government is not giving special training to the doctors for such purposes. I am not surgeon, but I am an Assistant Surgeon. There are different types of the fire arm injuries, namely, bullet injury, grenade injury, mines etc. I have not found any bullet in the body of deceased at the time of postmortem. I am not sure whether the injury found on the person of the deceased was of a pistol or rifle. Bullet has wound of entry as well as wound of exit. I have neither mentioned in my certificate the duration of the injury nor can I say what was the duration of the injury. I cannot say it that from what range the person has been fired upon. On the question, the deceased might have been hit from 30 meters, 40 meters or 50 meters, the witness has stated that I cannot say the exact distance of the range. I am not expert in conducting the post-mortem. I have not advised the police concerned to get the post-mortem of the deceased conducted through some expert. It is necessary to conduct the post-mortem of the person to know the actual cause of death. When I conducted the post-mortem of the dead body, I opened abdomen and skull. I opened the stomach of the dead body, but I have not mentioned in my certificate about contents of the food in the stomach. NAD word means "Nothing Abnormal or Detected". I have not mentioned the identification mark of the dead body. It is right that the kidney of the deceased was raptured. It is also true that the deceased was not having injury in the rib cage, but the only injury that I found was in the abdomen of the deceased. The perusing of the injury form of the police is to know whether the injuries mentioned in the form are same as received by the dead body. While going through the injury memo, I have not asked the I/O or the police officer, who brought injured before me. Why he has mentioned that the deceased has been hit on the rib. After conducting the post-mortem, I found only injury No.1 and Injury No. 3 as mentioned in the injury form. I have conducted the post-mortem of the dead body at the same time when it was brought before me. 1 have not mentioned the exact time of conducting the post-mortem of the deceased, but I have only mentioned the date of postmortem. In re-examination, no question was asked."
PW-9 HC Ab. MajidTeeliNo.62/KGM(witness of initial investigation) in examination-in-chief has stated that he does not know the accused, but accused is known to him by name. In the year 2002 to May 2002, he was posted as HC in P/S D.H. Pora. During this year he has conducted the investigation of the case. On 22nd February 2002 Police Station received an information from reliable sources that at Khuri Batpora some unknown persons entered into the house of deceased Nazir Ahmad Wagay and fired upon him, who died on spot. During the firing one-Mst. Rafiqa wife of Mohammed Amin Mir R/o Bagbal was also injured. On this report, FIR No. 18/2002 for the offence u/s 7/25 Arms Act, 302 and 452 RPC was registered and investigation was handed over to him. During the course of investigation, he went on spot and on the ground floor of the residential house, the dead 11 CRA No. 9900003/2017 body of the deceased-Nazir Ahmad was lying in one room. Another lady-Mst Rafiqa, who came to meet the deceased was also seriously injured. He has filled up the MLC form and injury memo and sent her to hospital D.H. Pora along with one constable. He prepared the site map. Same has been shown to him in the Court. It is the same, which bears his signatures. It‟s contents are true and correct. It is exhibited as EXPW-9. He recovered empty cartridges of AK 47 and the same had been seized, containing five in number. He has prepared the seizure memo and got the signatures of the witnesses also. Seizure memo annexed with the File bears his signatures. It‟s contents are true and correct. It is exhibited as EXPW-9/1. He has also got the photographs of spot, which are annexed with the File and are the same, which were taken on spot. Then, he took the dead body in his custody. He prepared the „Fard Magbozgi‟. All the proceedings were conducted in presence of local residents. „Fard Magbozgi‟ bears his hand writing, its contents are true and correct. It is exhibited as EXPW-9/2. He has also conducted the post-mortem of the dead body of the deceased from D.H. Pora hospital. After conducting post-mortem, dead body of the deceased was handed over to next kin for performing last rites. The dead body of the deceased was handed over against the proper receipt. Receipt also bears his hand writing and signatures. When the dead body was taken in possession, he also filled upon the injury memo and same was handed over to doctor for seeking opinion. Injury memos have also been prepared by him. It‟s content are true and correct. It is exhibited as EXPW-9/4. The doctor after conducting the post-mortem mentioned that deceased has expired due to fire arm injury. He also filled upon the death report form, which was in his hand writing. Its contents are true and correct and it is exhibited as EXPW-9/5. He has recorded statement of Mst. Rafiqa u/s 161 Cr.P.C on the day of occurrence and recorded the statements of witnesses on the same day. Whereas, other witnesses have been recorded on 28th of February 2002. The eye witnesses also include the mother, wife and cousin sister of deceased, namely, Mst. Rafiqa. Those witnesses have stated that it was the day of Eid-ul-Azuha at about 1 pm. Deceased Nazir Ahmad Wagay and Ab. Salam Wagay were working with army camp Nihama came to house to take lunch After finishing the lunch, deceased was sitting with family in his house kitchen and they were busy in talking, in the meanwhile, two gunmen came inside the house and their names were Ab. Hamid Teeli and Mohammed Rafiq Wani. Accused-Ab Hamid Teeli entered into the house and other accused were outside the house. The said Ab. Hamid Teeli attacked on the deceased with his own illegal automatic weapon and the deceased got killed. Cousin sister of the deceased, namely, Mst Rafiqa tried to save the deceased, but the accused also fired upon her and injured her. As per statement of witnesses and other circumstances, it has been proved that these two accused persons are involved in the murder of the deceased. He made search of the accused for three months, but they were evading their arrest, On 22.05.2002, he got transferred and handed over the investigation proceedings to office. Statement of the witness was deferred and again recorded. On cross-examination, he stated that on the day of occurrence, he was posted as HC/IO in Police Station and on those days, SHO was Sonaullah. On the day of occurrence, no sub-Inspector was posted in the Police Station. The Police station received information at 1 pm and the same was received from reliable sources. On those days, facility of telephone was not available. He was reluctant to depose the name of the reliable persons who has informed the Police Station on the day of occurrence. He received information that some unknown gunmen fired upon the deceased who got killed. He is unable to say by whom SHO Police Station received the information about the murder of 12 CRA No. 9900003/2017 the deceased and in this regard SHO can say better. He has not conducted the investigation in this regard. He has recovered the dead body from the spot himself and brought to hospital at D.H. Pora. He has sent Mst. Rafiq with PW-Ct. Manzor Ahmad to doctor. He has not accompanied the injuredRafiqa to doctor. She was treated by the doctor as per the saying of the constable and he has filled up the injury memo in presence of the doctor. He reached to Damhal Hospital on the day of occurrence and then Mst. Rafiqa was referred to hospital at Anantnag. The deceased was taken by him to the Hospital. He has not cited Manzoor Ahmad as witness. The injury memo of the deceased and Mst. Rafiqa bear his hand writing. The injury memo of Mst. Rafiqa was shown to him and he stated that both injury memos are in his hand writing. He has recorded the statement of Mst. Rafiqa on the day of occurrence at
3.p.m. Mst. Rafiq PW-2 stated in her statement recorded u/s 161 Cr.P.C that unknown masked gunmen entered into the house and started firing with their illegal weapons with intention to kill them. This is correct that in the FIR as well as in the statement of Mst Rafiqa, the name of the accused-Ab. Hamid Teeli is not mentioned and up till 28th of February 2002 his name has not come in the proceedings. But this fact has come on surface about his involvement in the murder of the deceased on 28.02.2002, when Mst. Rehmati and PW-1 Ab. Salam Wagay have deposed before Court that two militants entered into the house and started indiscriminate firing upon the deceased. Injured-Mst. Rafiq has stated that two unknown masked militants entered into the house and started militants entered into indiscriminate firing upon the deceased. This is correct that PW-3 and PW-4 and PW-1 Ab. Salam have stated in their statements recorded u/s 161 Cr.P.C that two militants have indiscriminately fired upon the deceased and up till 28th of February, 2002, he was unable to trace the person, who was involved in the killing of the deceased because no witness has declared the name of the accused. Injured PW-Rafiqa has only stated that masked militants and she has not identified them. During investigation, it has come in his knowledge that these two militants have indiscriminately fired upon the deceased on the day of occurrence. He prepared the site map and took the dead body in his possession. Seizure memo was prepared. Receipt of the dead body was also prepared and statement of the injured was also recorded. Receipt of the dead body was also prepared and statement of injured was also recorded. Prior to recording of statement, he has prepared the site map. Prior to recording the statement of PW-2, he has prepared the seizure memo, Fard Magbozgi and injury memo. He has prepared the site map on the identification of the relatives of the deceased. When he reached on spot, he found Rafiqa was having injury of bullet. Blood was oozing and some matting was also lying with blood. Matting and Namda were also pooled with blood. He has not found proper to seize these articles. When the deceased and injured-Rafiqa were fired upon, they were sitting on the said matting. There were also blood stains on the soil. At the place of occurrence, there was cemented floor. When he reached on spot, he found the deceased at the place, where he was fired upon. It means that dead body was not taken away from the spot, where he received bullet shots. There were two rooms of the house and there is a corridor between the two rooms. He has also shown the window and cowshed at mark „C‟. He has not seen the matting in the site map, where the dead body of the deceased was lying. It was mentioned in the site map that gunmen fired upon the deceased. It means that then one gunman entered there. He has not been shown the place, where the injured-Rafiqa was lying. During investigation, it has not come in the investigation that who went to hospital along with injured, but her relatives went with her. He has not brought the 13 CRA No. 9900003/2017 deceased to the hospital. Again stated that dead body of the deceased was taken to hospital by him. At first, he prepared the site map and then took the deceased to hospital. He is not expert in medical line, as such, has not declared the deceased as dead at his own. He found that deceased was expired so he was not taken to hospital earlier. Only doctor can declare the person as dead or not. It is duty of the I/O that if any person sustains injury, at first, he is to be sent to hospital for treatment. People of their own cannot declare a person asdead of their own. He is unable to state that after how much time the deceased expired after receiving bullet shots. Mst. Rafiqa was not taken to hospital by her relatives prior to his reaching to the Spot. When he reached on spot, he called the photographer and got the photography of the place of occurrence, where the deceased had received the bullet shots and was lying there. He has not taken away the deceased from the spot before conducting the photography. After that, the deceased was taken to hospital. When he got photography of the deceased, matting and Namda were lying there. He has seen photographs. These have been seen by him in the File. These are the same, which were conducted from the spot. He is unable to say whether dead body of the deceased was lying on matting or on the Mattress because his eyesight is good. Why he has not conducted the photographs on spot because there was circumstantial evidence. During investigation, he was having no link whether dead body was lying on floor or on surface. He was HC on those days. He knows the Code of Criminal Procedure. As per „Code of Criminal Procedure‟ u/s 156 of Cr.P.C, SHO can handover the investigation. He has knowledge FIR is to be registered u/s 154 of Cr.PC, under section 162 Cr.P.C means the statement u/s 161 Cr.P.C, which has been recorded and copy of these statements is to be sent to Magistrate. He does not know what is meant by Section 162 of the Cr.P.C. Under Section 155 of the Cr.P.C, SHO can conduct the investigation at his own. He has not mentioned the name of accused on the receipt of the dead body or custody memo because these papers have been prepared when no evidence has come against the accused. He has seized the blood stained clothes of the deceased. He does not find any importance of these clothes. He is unable to say as to how many bullet marks were on dead body, but there were some marks. He has not seen those clothes as the same were not required. He has seen three injuries on the dead body of the deceased which were seen by him by his naked eyes. He has no knowledge as to how many bullets were received by the deceased. He has not conducted investigation in this regard. There were only three injuries seen by him, which are mentioned in the injury memo. If doctor has stated that only one injury was on the dead body of the deceased, that is wrong, because he has mentioned in injury memo. He received copy of FIR at early and after that, investigation was entrusted to him. There is carbon copy of FIR on the File which was handed over to him. Same FIR has been taken by him on the day of occurrence and remained with him for three months. The FIR was shown to the PW and in Col 8 seen and File is written, who has written it, he has no knowledge. He has not sent any copy of Magistrate. Only one FIR has been registered in the Police Station. On 23.02.2002, he has not recorded the statement of anybody. He has shown mark A on the site map, where deceased was hit with bullet. He is not remembering, who is the photographer who has taken the photographs and can verify from the CD File. After seeing the CD File he stated that name of photographer is not mentioned therein. He has no knowledge who has taken the photographs. So he has neither recorded the statement of photographer nor was he enlisted as witness because in those days, prevailing situation in the area was not conducive and photographs went outside the valley, but about this fact, nothing is mentioned in the daily 14 CRA No. 9900003/2017 dairy. During investigation, he has received opinion about the injury. Mst. Rafiqa was treated in D.H. Pora Hospital, then in District hospital Anantnag. He has also not conducted the investigation with regard as to how many bullets were received by Mst. Rafiqa. He has received the final opinion about the death of the deceased from one doctor. He is unable to say as to who has given the final opinion with regard to injured-Mst. Rafiqa, but he has received from one doctor. Mst. Rafiqa was identified before doctor by Ct. Manzoor Ahmad, whereas the deceased wasidentified by him. He is unable to say as to why the doctor has not mentioned on the injury memo about the presentation of dead body of deceased. At that time, SHO was also with him. He has not taken care whether there were marks of bullet found on the walls of the rooms or not. On further examination after the statement was deferred, stated that he recorded the statement ofPW-4-Mst Rafiqa on the day of occurrence and recorded statement of other witnesses on 28.2.2002, as family members of the deceased were in shock. He did not record the statements of witnesses on 23rd of February, 2002, as he was on leave on that day and was busy in other works of law and order and on 24thof February, 2002, witnesses were not ready to depose their statements. He did not make any mention in the daily dairy that witnesses were in great shock of death of deceased and were not ready to record their statements on 24th February, 2002. He did not record the statements of witnesses from 25th to 27th of February, 2002, as family members of the deceased were busy in performing the „Chahram‟ of the deceased. However, the same was not mentioned in the daily dairy. He did not record any investigation 25th to 27th of February 2002 however verbal investigation was going on. He has not seen the cartridges in the Court, mention of those is given in Exhibit EXPW-9/3. He does not know as to where they are lying presently. He also does not know which of the accused fired and how many rounds were fired on the deceased. He recorded the statement of PW-Ab.SalamWagay, who was relative of the deceased. He did not make any mention of accused in ExhibitFard Magbozgi and seizure memo. He did not conduct the identification parade because one of the relative has identified the accused, but the accused has not been arrested during his investigation. During recording of statements of witnesses, they deposed that gunmen fired upon the deceased. Again stated that Injured-PW- Mst. Rafiqa stated that gunmen fired upon the deceased and they were covered with faces, due to which she could not identify them. When he reached on spot, he found the dead body of the deceased at the place, where he was shot dead and was lying in the kitchen. He cannot say whether deceased was shot dead at the place, where he was lying at the time when he reached on spot. He also does not know at which place injured-Rafiqa sustained injuries in the Kitchen. Floor of the kitchen was not fully blood stained. Blood was oozing from the injuries of the deceased in the kitchen, where he was lying and there was much blood at the place, where the deceased was lying. Prior to recording statement of injured-Rafiqa, he prepared the site map and also conducted the photography of the place of occurrence. He conducted the photography of the deceased when he was in his clothes. He does not remember whether he obtained photographs from the photographer or not. He did not make any mention in seizure memo where injured Rafiqa has sustained injuries. Site map was prepared at the disclosure of family members of the deceased. He did not make count of the matting, which was lying in the kitchen. As an I/O, he was obliged to conduct the postmortem of deceased through a doctor. He got conducted the post-mortem of the deceased through Dr. Mohammed Yosuf and he is not having knowledge about his degree. After completion of investigation, the accused 15 CRA No. 9900003/2017 was only to be arrested and the investigation was entrusted to other I/O. Post- mortem of the deceased was conducted at 2 P.M. As per photographs, deceased was wearing pent and Faren.
PW-10 HC Abdul Rashid No. 05/KGM (witness of complete investigation)in examination-in-chief has stated that he knows the accused who was active militant. In the years 2000 he was posted as Head Constable in Police Station D. H.Pora. In this case preliminary investigation was conducted by HC Ab. Majeed and then investigation was handed over to him on 15.09.2002. He collected the case diary from the said Ab. Majeed who prepared site map, recorded the statements of witnesses u/s 161 Cr.P.C. Postmortem of the dead body of the deceased was also got conducted by him. As per his investigation, offences u/ss 302, 307, 326, 452/RPC and 7/25 of the Arms act were made out against the accused Mohammed Rafiq Wani and Ab. Hameed Teeli. Search operation against the accused was carried on as they were evading their arrest as being active militants. Whereas, accused Mohammed Rafiq Wani was got killed in an encounter and accused Ab. Hamid Teeli was also evading his arrest. The case remained with him upto March 2003. After that he was transferred to P/S D.H. Pora and investigation of the case was entrusted to some other person. During his investigation, accused Ab.Hameed Teeli was arrested. On the question by defence counsel, he has stated that investigation of the case remained with him for two months and he has not deemed it proper to record the statement of witnesses or to prepare the site map. He has visited the spot and he did not deem it proper to record statement of any independent witness. If the accused was arrested, he would have been brought before the Court, as no further investigation was required. He never visited the house of the deceased. As it was not proper to visit their house because HC Ab. Majeed has completed the investigation. He was posted at P/S D.H. Pora. He was not present in the Police Station when dead body of the deceased was brought there. He was on leave on that day. He does not remember as to who was posted as SHO at that time in Police Station. Perhaps in those days ASI or SI have been posted as SHO. In these two months, no witness came to him at his own. He has not prepared the document that he has written the case diary.
8. D E F E N C E E V I D E NC E :-
DW-1 Manzoor Ahmad Teeli on the question of defence council has stated that he knows the deceased Nazir Ahmad Wagay. He has been running a shop at Bagbal for the last twenty years. The deceased was affiliated with Ikhwan and was working with army at Naheima. On the day of occurrence, he was at his shop, which is ten yards away from his shop. When he reached on spot he saw dead body of the deceased and two persons in army uniform who were running from the spot. Occurrence took place seven years earlier. Gunmen who were running from there, were having closed face, so he could not recognize them. He knows Hamid Teeli, but he was not accompanying the gunman. He has heard that accused was also affiliated with Ikhwan, but he has no knowledge at that time whether Hamid Teeli was working with army. He has seen accused with gunman. Due to affiliation of accused with Ikhwan, general public was having irritation with the accused. He has seen Mst. Rehmati and Mst. Rafiqa in the house at the time of occurrence. People have stated that Hamid Teeli was also alongwith the gunman and has fired upon the deceased. But nobody has identified the gunman. On the bases of doubt, people showed the name of accused. On cross-examination by CPO stated that his house is half kilometre away from his shop. Kokherhama is away five 16 CRA No. 9900003/2017 kilometres from the place of occurrence. Heknows so many people of Kokherhama like Mubarak Teeli. He knows accused Abdul Hamid Teeli forthe last twenty years. He is not relative, but is his friend. He used to go Ikhwan. The accused-Abdul Hamid was not a militant, but he was affiliated with Ikhwan. After that, he had never gone to the house of accused. The accused was working with Ikhwan for the last the (10) years. He has no knowledge whether he used to come to the village with army or not. In the village Bagbal, 2/3 time crackdown took place. The crackdown was conducted by the army and Ikhwan people also used to come with them. He has not seen the Ikhwan persons when they conducted the crackdown. The Ikhwan people were being killed by the militants. He has no knowledge whether the militants went to the house of accused for killing him or not and is not remembering whether Ikhwani people have killed Ikhwani or not. In his knowledge, army personnel have never killed any Ikhwani, but this is correct that militants used to kill the Ikhwani and Ikhwani used to kill militants. He has no knowledge whether Ab. Hamid Teeli ran away with the Ikhwanies or not. He is unable to say whether the accused Hamid Teeli,who has killed the deceased, was also with the gunmen or not, because all these were wearing masks. He has neither seen any vehicle in which gunmen came on spot nor was there any crackdown. Gunmen ran away from the orchards. DW-2 Jozi Akther hasstated that she knows the deceased. On the day of occurrence when she was sitting adjoining to the house. The deceased was killed by the unknown gunmen in the year 2002. The deceased was Ikhwani, working with army camp Nihama. She knows the accused Ab.Hamid Teeli and has never seen him as gunman. 2/4 masked persons, who were in army uniform entered into the house of deceased and nobody has identified them. The accused Hamid Teeli was also Ikhwani. She knows the mother and wife of the deceased.Both were present in the house on the day of occurrence. Many people were having enmity with the accused Ab. Hamid, as he was working with Ikhwan. So People have deposed against him. On question by PP she has stated that the accused entered in the house of deceased having gun in their hands. She has seen them when they entered into the house. But she does not know them. She is residing ten feet away from the place of occurrence.
DW-3 Mst. Rafiqa has stated that Nazir Ahmad Wagay is her cousin brother. She went to his house. Two persons, who were not known to her came inside the house. There was snowing. She alongwith other family members was sitting in a room and could not identify them. She has seen them while they were having worn army uniform. PW-Rehmati and Rafiqa were present there. She has not seen any gunman, as she felt unconscious due to hearing of fire shots. She sustained injuries and was also taken Hospital Soura. She has not given any statement before police and does not know Hamid Teeli. She has never deposed that Hamid Teeli has killed the deceased. She does not know whether deceased was gunman or not. On cross-examination, she has stated she was married in the same village where the occurrence took place. There is a short distance of 2/3 yards between the house of the deceased and her house. Deceased Nazir Ahmad Wagay was working with army, due to which he was killed. Such persons were being killed by the militants, who used to work with the army. She was sitting in a room and gunman entered there and fired upon. She received injuries on thigh. The deceased was killed on spot. She has not seen face of gunman who killed the deceased. PW-Salam Wagay is not relative of the deceased, but he was present in his house. Her brother has died earlier so she went to house of deceased.17 CRA No. 9900003/2017
9. The 1 argument canvassed by Ld. Counsel for appellant/convict is, that the st prosecution has examined 3 eye witnesses namely, PW-1 Ab. Salam Wagay, PW-2 Mst. Rehmati & PW-4 Mst. Rafiqa, out of these three eye witnesses PW-1 Ab. Salam Wagay has turned hostile, whereas out of the other two eye witnesses only Mst. Rehmati has supported the prosecution case, but there is no other evidence regarding the appellant on file, which makes the prosecution case full of doubts, whereby the impugned judgment of conviction is liable to be set aside.
The gravamen of the prosecution case against appellant/convict is, that on 22.02.2002 police of Police Station D.H. Pora received information from reliable sources that some unknown gunman entered into house of one Nazir Ahmed Wagay and fired upon him, killing him on spot. The said information resulted in registration of FIR No. 18/2002 of P/S D.H. Pora for commission of offences punishable under sections 302,307,326,452 RPC r/w 7/25 Arms Act and the investigation culminated in the production of challan before the court of law in absence of the accused persons. During investigation, it was established by the statements of eye witnesses that accused person namely Ab. Hamid Teeli & Rafiq Ahmed Wani who were the active militants of Hizbul Mujahidin had committed the offence. Accused Rafiq Ahmed Wani got killed in an encounter with security forces on 10.09.2002 at Danew Kandiwmarg, as such, his name was deleted from the charge sheet. To prove the case against appellant/convict, prosecution has relied upon two (2) sets of witnesses. There are five (5) eye witnesses shown in the charge sheet, whereas two (2) other witnesses are witnesses to seizure. PW-5 Sonaullah Wagay (eye witness) has expired during the pendency of trial without his evidence being recorded before the trial court, whereas, PW-2 Mst. Rafiqa (cousin sister of deceased) has chosen not to appear as prosecution witness but as a defence witness, while eye witness PW-1 Ab. Salam Wagay has turned hostile. As such, the evidence tendered by the remaining two (2) eye witnesses namely PW-3 Mst. Rehmati (m/o deceased) & PW-4 Mst. Rafiq (wd/o deceased) before the trial court acquires great significance and requires to be critically appreciated to find out whether they have proved the prosecution case against the appellant or not. PW-3 Mst. Rehmati (m/o deceased) is eye witness to the occurrence and has deposed before the trial court that "she knows the accused, deceased was her son who was working in CIB, 6 years earlier she was at her home when on the day 18 CRA No. 9900003/2017 before Eid-Ul-Azha she made fold handed request to the appellant to let her son as he was her alone son but the accused murdered him and ran away from the spot, deceased was killed by fire shots, accused fired so many fire rounds resultantly glass panes of windows of house were broken while other accused Rafiq Wani was standing outside, no other male member was present in the house, she, her daughter-in-law and two other children were present, deceased‟s cousin was also injured in the occurrence". PW-4 Mst. Rafiqa (eye witness, wd/o deceased) has tendered evidence before the trial court, "that on 22.02.2002 it was Friday, her family members i.e. her mother-in-law, children‟s and others person were taking lunch in the house, her husband had taken meals, in the meanwhile, accused came inside the house in the kitchen at about 12.45 pm started firing on the deceased and her cousin Rafiqa who sustained injuries, deceased died on spot and later on police and doctor came on spot, two militants had come in her house but accused Ab. Hamid Teeli had opened fire upon the deceased and killed him, her husband received fire injuries on food and thigh". Be it noted, that after the critical appraisal of the depositions of aforesaid eyewitnesses (PWs 3&4) We find, that despite their grueling cross-examination, they have withstood their stand taken in their examination-in-chief and have not suffered any major contradictions or summersault during their cross-examination. Their depositions seem to be cogent, credible, trustworthy, reliable and admissible in evidence as they have identified the appellant firing upon the deceased with fire arm and killing him on spot. PW-1 Ab. Salam Wagay (eye witness) though has turned hostile towards the prosecution, but in his cross-examination by PP he has admitted the fact that at the time of occurrence mother (PW-3 Rehmati) & wife of deceased (PW-4 Rafiqa) were present on spot when a tall man came with rifle and he heard noise of fire shots. The genesis of the occurrence also stand proved by aforesaid hostile witness though he has not identified the accused. It is settled law, that the contradictions which are minor in nature would not be sufficient to dispel the entire prosecution case. In regard to the evidence of hostile witness, Hon‟ble Supreme Court in a case law reported in AIR 2009 SCW 3540 [GURUNATH DONKAPPA KERI & ORS V. STATE OF KARNATAKA] held, that only because other witnesses have turned hostile, the same should not by itself be a ground for coming to the conclusion that incident had not taken place. (Vide Paragraph 30 of the judgment). PW-6 Mohd Amin Misgar & PW-7 Ghulam Mohammad Lone though are witnesses 19 CRA No. 9900003/2017 to seizure and possession of dead body but have stated before the trial court that on enquiring on spot mother of deceased, wife and sister told them that accused Ab. Hamid Teeli killed the deceased by fire arm. The core question which arises for consideration is, whether the hearsay evidence of PW-6 & PW-7 which corroborates the substantive evidence is admissible in evidence or not? Hon‟ble Apex Court of India in a case law reported in AIR 2009 Supreme Court 1854 [MUKHTIAR SINGH AND ANR V. STATE OF PUNJAB] while observing that the hearsay evidence corroborating the substantive evidence is admissible, in paragraph 8 of the judgment held as under:-
8. PW-5 has clearly stated in his statement that no telephone was installed at the Railway Station, Kahangarh but there was a telephone installed at the Railway Control Room at the Railway Station which, however, was found to be out of order. He also stated that he had gone to GRP Police Post at Budhlada from where he sent a message to the Control Room at Bathinda on telephone about the occurrence. The aforesaid statement clearly explains the delay in sending the information and also explained as to why detailed information regarding all materials leading to the occurrence was not mentioned by him. He cannot be called in any manner an interested witness; in fact he was a most dis-interested witness. Nothing has been brought on record to show that he is inimical to the accused persons. He has specifically stated in his depositions that he saw the aforesaid accused running towards the village side carrying weapons. His presence at the spot cannot be doubted as it is established that he was at duty at the Railway Police Post, Kahangarh, which is the place of occurrence. He has also stated in his depositions that he had in fact chased the two accused persons up to a certain distance but could not manage to nab them and that when he returned to the scene of occurrence, Surjit Kaur, PW-3, disclosed to him about the occurrence. This shows that he did not see the accused persons attacking the deceased but learn about the same from an eye witness and the said information about the dead body lying at the platform was flashed by him, for he knew that on receipt of the aforesaid information the police should start investigation and during that course police would definitely ask eye witnesses and get all the information from them. In any case, his information would be hearsay evidence, but as the same corroborates the substantive evidence of PW2 and PW3 the same would be admissible, as was held in the case of Pawan Kumar v.
State of Haryana, [(2003) 11 SCC 241], wherein it was observed that evidence of such nature could be used to corroborate the substantive evidence. However, in that case, as there was no substantive evidence the benefit of said evidence was not granted. Applying the ratio of the judgment (Supra) to the facts of the case in hand, it is reiterated, that PWs 6&7 Mohd Amin Misgar & Ghulam Mohd Lone who are witnesses to the seizure and possession of the dead body of deceased have categorically put forth evidence before the trial court that when they went on 20 CRA No. 9900003/2017 spot, on enquiring, mother of deceased and his sister told them that accused Ab. Hamid Teeli killed the deceased by fire arm shots. This shows that PWs 6&7 did not see the accused person (appellant) attacking the deceased, but learnt about the same from eye witnesses PWs 3&4 Mst. Rehmati & Mst. Rafiqa. In any case evidence of PWs 6&7 would be hearsay evidence, but as the same corroborates the substantive evidence of eye witnesses PWs 3&4 Mst. Rehmati & Mst. Rafiqa, the hearsay evidence of PWs 6&7 would be admissible in evidence.
10. The 2 nd argument urged by Ld. Counsel for appellant/convict is, that the blood stained clothes of Mst. Rafiqa (cousin sister of deceased) and the deceased were not seized, which points out an error on the part of investigating officer, the same by itself is sufficient to discard the genesis of the entire prosecution case.
PW-3 Mst. Rehmati (eye witness and m/o deceased) in her deposition before the trial court has categorically stated, that after the occurrence Doctor came on spot, police seized clothes of deceased and later on gave it back, she has no knowledge whether any seizure memo was prepared, she did not see those clothes of deceased in the court. PW-6 Mohd Amin Misgar, witness to seizure and possession of dead body of deceased has stated that when he went on spot, he saw the dead body of deceased lying in the kitchen and stained in blood, while in cross-examination he has stated that he has no knowledge whether police had seized clothes of deceased. PW-7 Ghulam Mohd Lone is also witness to seizure and possession of dead body and has stated that when he reached on spot, blood was oozing out from the injuries of the dead body and he has no knowledge whether clothes worn by deceased which were having blood stains were seized by police or not.
Hon‟ble Supreme Court of India in a case law reported in AIR 2009 SCW 3540 [GURUNATH DONKAPPA KERI & ORS V. STATE OF KARNATAKA] while dismissing the appeal against conviction rendered by a Division Bench of High Court of Karnataka and convicting the appellants/convicts for commission of offences punishable under sections 143, 148, 307, 302, 504, 149, IPC and observing that non-seizure of blood stained clothes of a witnesses/deceased though is an error on part of I/O but not sufficient to discard the prosecution case, in paragraph 28 of the judgment held as under:-
21 CRA No. 9900003/201728. Mr. Viswanathan pointed out that blood-stained clothes of the witnesses were not seized. Even if it is accepted, the same merely points out an error on the part of the investigation officer. The same, by itself, is not sufficient to discard the entire prosecution case.
Ratio of the judgment (Supra) makes it manifestly clear, that the non-seizure of blood stained clothes of the witness/deceased though is an error, but the same does not discard the entire prosecution case. The evidence of eye witnesses PW-3 Mst. Rehmati (m/o deceased) & PW-4 Mst. Rafiqa (wd/o deceased) who are natural witnesses to the occurrence, the essential ingredients to prove the crime against appellant/convict have categorically been stated by them, the court below has correctly placed implicit reliance on their testimonies. Our attention has not been drawn by Ld. Counsel for appellant to any major contradiction in the depositions of the aforesaid eye witnesses so as to disbelieve the entire prosecution case. There is overwhelming evidence on record to show that the incident had taken place in village Bagbal D.H. Pora District Kulgam. Once the genesis of the occurrence is proved, it is now settled principle of law, that contradictions which are minor in nature would not be sufficient to dispel the entire prosecution case. The arguments of Ld. Counsel for appellant/convict that non-seizure of blood stained clothes of the witness and deceased would demolish the very edifice of the prosecution case, are legally unsustainable, repelled, discarded and rejected.
11. The 3 rd argument articulated by Ld. Counsel for appellant/convict is, that prosecution has not examined any forensic expert to prove that the injury was caused by the bullet or that the bullet could have been fired from the weapon used by appellant, no blood stained earth was seized from the place of occurrence, and the same would reject the case of prosecution in it‟s entirety.
The legal position to this effect has been laid to rest by an authoritative pronouncement of the judgment rendered by Hon‟ble Supreme Court of India in a case law titled NIRMAL SINGH AND ANR VS. STATE OF BIHAR [Appeal (Crl.) 170-171 of 2004] wherein Hon‟ble Supreme Court in paragraphs 21 & 22 of the judgment at pages 5&6 held as under:-
21. It was then submitted that the prosecution has not examined any forensic expert to prove that the injury was caused by a bullet or that the bullet could have been fired from any of the weapons allegedly carried by the appellants and their companions. The fact that a bullet was found embedded in the vertebra of the deceased is by 22 CRA No. 9900003/2017 itself conclusive of the fact that the deceased had suffered a fire-arm injury. The question as to whether the said bullet was discharged from any of the weapons carried by the appellants is of no significance in the facts of the instant case since the weapons allegedly carried by the appellants were neither recorded nor seized. There was, therefore, no material on the basis of which the ballistic expert could have given his opinion as to whether the bullet had been discharged from the weapons carried by the appellants.
22. Counsel then submitted that the prosecution has failed to prove that the dalan of the deceased was the real place of occurrence. This submission is based on the fact that no blood stained earth was seized from the place of occurrence. It is true that no blood stained earth was seized from the place of occurrence but there is also evidence of several witnesses including the investigating officer that no blood had fallen on the earth. Eye witnesses explained that on receiving the injury the deceased pressed his wound with his hands where after a piece of cloth was tied around the wound which soaked the blood which may have come out. There was, therefore, no likelihood of the earth getting blood stained. Counsel for the appellants submitted that the intestines were protruding as described in the inquest report, and in such a situation there must have been some bleeding. That may be so, but in view of the explanation offered by the prosecution witnesses it appears probable that no blood had fallen on the ground at the place of occurrence. In any event, if some blood had fallen at the place of occurrence which the investigating officer failed to notice, that by itself will not be fatal to the case of the prosecution. We must observe that the investigation in this case has been most unsatisfactory and the investigating officer was not conscious of his responsibilities. The blood stained piece of cloth which was wrapped around the wound of the deceased appears to have been seized by the investigating officer, but when questioned as to why it was not sent for chemical examination, he answered that he had hung that piece of cloth on a guava tree in the police station. The statement is comical but discloses the utter non-seriousness with which the investigation was conducted. We had expected better from the investigating officer who was investigating a serious case of murder. However, for this reason we will not reject the case of the prosecution entirely.
Ratio decidendi of case law (Supra) makes it manifestly clear, that the cogent evidence of eye witnesses cannot be rejected on account of the failure of the investigating officer to send blood stained clothes for chemical examination and failure to examine forensic expert to prove that the injury was caused by bullet. The arguments put forth by Ld. Counsel for appellant/convict to the said effect, therefore, are legally unsustainable, repelled, discarded and rejected.
12. The 4 th argument portrayed by Ld. Counsel for appellant/convict is, that the I/O has failed to collect blood stained earth, empties were admittedly not collected from the place of occurrence, no seizure memos were prepared 23 CRA No. 9900003/2017 which indicates that investigation of the case is faulty and it clearly creates a dent in the case of prosecution entitling the accused it‟s acquittal.
In a case law reported in AIR 2011 SUPREME COURT 184 [MAQBOOL ALIAS ZUBIR ALIAS SHAHNAWAZ AND ANR V. STATE OF A.P.] Hon‟ble Supreme Court while dismissing the appeal and upholding the conviction of appellant for commission of offence u/s 302/34 IPC for imprisonment for life and observing that for faulty investigation conviction cannot be liable to be interfered, in paras 10, 11&17 of the judgment held as under:-
10. While relying upon these extracts of the examination-in-chief and cross-examination of his witness, the Learned Counsel appearing for the appellant contended that since the blood-stain earth and nothing else recovered from the premises including the empties of the gun shots. The investigation of the case is faulty and cannot be relied upon, the statement of the Investigating Officer is found to be not supporting the case of the prosecution. The whole case of the prosecution should fall. Firstly, we cannot read these statements out of context and they must be examined their entirety. In other words, the statement of the Investigating Officer has to be read in its entirety and then any conclusion can be drawn. Certainly, this Investigating Officer has failed to conduct the investigation as per the expected standards and we have no hesitation in observing that the case could have been investigated with greater care, caution and by application of scientific methods. It will not give the accused/appellants any benefit because PW1 was never confronted with his statement under Section 161, Cr. P.C. by the appellant during her cross-examination with regard to the above facts.
What she had stated before PW14, would be best recorded in the statement under Section l6l Cr.PC. That steps having not been taken by the appellant in accordance with law, now, they cannot drive any benefit. Secondly, not only PW2 but even other witnesses have stated that there was sufficient light in and around the place of occurrence because of street light, light from the house of the deceased, bus stand and the Nursing Home. There is no reason for us to disbelieve PW1, PW3 and other witnesses who said that there was sufficient illumination at the place of occurrence and the argument advanced by the appellants hardly has any merit. Yes, it was expected of the Investigating Officer to seize from the place of occurrence such articles or items including the blood-stain earth or empties, which were available even as per his statement. This lacuna in investigation stands completely covered by the statement of the witness, the medical report, and the eye-witness version. Dr. K. Raja Gopal Reddy, Professor and Head of the Forensic Department, Gandhi Medical College who had performed post- mortem was examined as PW24 and he stated that his opinion had been sought by the Investigating Officer. After going through the report and the inquest report, he had stated that the probable weapon used was rifle fire-arm and Ext. P13 was his opinion. In Ext. P15 which is the post-mortem report, the injuries have been described as under.
24 CRA No. 9900003/201711. The above evidence of the doctors as well as that of the PW1 clearly establishes the story prosecution. According to PW1, the assailants fired three armed shots and as per medical evidence also, there are three injuries and exit injuries on the body of the deceased. We have also noticed that the investigating Officer failed to perform his duties appropriately in not recovering the blood stain earth as well as the empties since they were not in the body of the deceased. According to the Investigating Officer, there were few other people and there was a bus stand near the place of occurrence. The Investigating Officer fully corroborated the statement of PW-1 and other witnesses. Another important factor which has to be noticed is, probably the way this Investigating Officer has conducted the investigation, that investigation of the case was transferred to CID after some time and, it was CID which completed investigation of the case. PW25 and PW26 have then conducted investigation at a later stage. According to PW25. M. Vankata Rao he had arrested the accused as well as seized certain items vide Ext. P38 including a scooter while Ashok Kumar PW26 claimed that he was working as Inspector and as per Memo No. 1214/C12/CID/2000 of the Additional DGP, CID this case was given to him for investigation. After the arrest of Mirza Qasim Baig, A.4 and his confessional statement, the systematic investigation was conducted by him and he arrested accused Kameel as well as accused Feroz somewhere on 2nd June, 2000. He even recorded the statement of PW4. On 17th June, 2000, he submitted a requisition before the JFCM for holding Test Identification Parade for identification of both the appellants and he was the main Investigating Officer who conducted the investigation and arrested the main accused. During investigation a diary/writing was also recovered relating to the activity of the accused particularly, the occurrence in question. The writing was sent for comparison to the Forensic Science Laboratory at Hyderabad and which had expressed an opinion that the persons who wrote the red enclosed writings marked as Sl to S29 also wrote the red enclosed writing marked Q1 to Q378, O131/1 and Q122/1. The identification parade was conducted on 29th July. 2000 at 3.30 p.m. vide Ext. P28. This was conducted and completed by 8 th Metropolitan Magistrate, Hyderabad. This identification parade was performed in the jailor's office room and the witnesses were examined by the Magistrate. The Magistrate had required and the jailor then had provided non- suspect persons who were, asked to participate in the parade after the accused had expressed his satisfaction, he even was asked to stand in any place in the row with the known-suspects and thereafter Y. Krishna Mohan (PW-1) was brought to the Test identification Parade and then the accused was identified in accordance with law. The identification parade was closed. Despite the above Test Identification Parade having been conducted in accordance with law, the appellants have raised objections to the identification parade and have stated that they were in illegal confinement of the police. Their photographs were shown and the identification parade itself has been conducted after such a long time. While relying upon the case of Musheer Khan (AIR 2010 SC 762: 2010 AIR SCW 996) (supra), it is contended that they were detained in police custody and that discrepancies discernible in his identification by the witness renders the identification unbelievable and improper.
25 CRA No. 9900003/201717. For the manner in which the Investigating Officer (PW-25) had conducted the investigation requires much to be desired. We cannot also ignore the fact that he showed utter carelessness collecting the blood-stained earth and empties and other material pieces of evidence, which were available at the place of occurrence. The occurrence had taken place late in night i.e. at 10.45, p.m. and hardly there would be such gathering. It was expected of the Investigating Officer to perform his duties with greater caution, sincerity and by taking recourse to appropriate scientific methods for investigating such a heinous crime. Thus, we direct the Director General of Police, Andhra Pradesh to examine this aspect and take action in accordance with law.
Ratio of the judgment (Supra) makes the legal proposition abundantly clear, that where the incident is witnessed by wife and employee of the deceased, their evidence truthfully describing events they have seen without exaggeration cannot be discarded on the ground that both are interested witnesses, and even for faulty investigation of the I/O failing to collect blood- stained earth or empties from the place of incident, the eye witnesses‟ evidence fully corroborated by medical evidence, lacuna in the investigation cannot disbelieve the prosecution story therefore conviction of the accused cannot be interfered with. Ratio of the judgment (Supra) squarely applies to the facts of the case in hand. It is apt to reiterate here, that PW-3 Mst. Rehmati (eye witness, m/o deceased) has categorically put forth evidence before the trial court that on the day of occurrence she was at home and made fold handed request to the accused to let her son being her only son but accused murdered her son with fire shots and ran away from the spot. PW-4 Mst. Rafiqa (eye witness & wd/o deceased) has corroborated the testimony of PW-3 Mst. Rehmati by deposing that on 22nd of February 2002, it was Friday, her family members were taking lunch in the house i.e., her mother-in-law, children and other persons were present, her husband has taken meals, in the meanwhile, accused Ab. Hamid Teeli came inside the house in kitchen at about 12.45 pm where he started firing on deceased and her cousin Rafiqa, and they sustained injuries, whereby, deceased died on spot and later on police and doctor came on spot. Evidence of eye witnesses namely, PW-3 Mst. Rehmati & PW-4 Mst. Rafiqa who are natural witnesses to the occurrence, the essential ingredients to prove the crime against appellant/convict have categorically been stated by them, the court below has correctly placed implicit reliance on their testimonies. PW-8 Dr. Mohd Yousuf has conducted the post-mortem of the deceased Nazir Ahmed Wagay S/O Sonaullah Wagay R/O Raghal age about 25 years on 22.02.2002 brought 26 CRA No. 9900003/2017 by SHO Police Station D.H. Pora and after finding 3 injuries viz; (a) Wound at anterior aspect of Neck, meaning thereby bullet injury bruised area, the fire arm passed through superficially, (b) A wound of entry on Pericumbical region with exit through right renal area, intestines bursted out & (c) A bullet injury on right hand near thumb, has came to the conclusion that cause death was bullet injuries leading to haemorrhage, leading to trauma vital organs leading to cardio pulmonary arrest leading to death. The Doctor‟s opinion aforesaid has categorically proved that one of the bullets fired by appellant/accused upon deceased has pierced through pericumbical region i.e. the region around or behind belly bottom and shown it‟s exit through right renal area (kidney areas) bursting out the intestines leading to trauma vital organs leading to cardio pulmonary arrest ultimately leading to death. The gravity of the injuries and the intention of appellant/accused to commit the murder of deceased can be visualized from the fact that the renal area and the intestines of the deceased have been bursted out by the bullet shots fired by the appellant upon the deceased. The medical evidence of Dr. PW-8 Mohd Yousuf fully corroborates the eye witness‟s version of PW-3 Mst. Rehmati & PW-4 Mst. Rafiqa that the appellant fired bullets upon the deceased who died on spot. The presence of eye witnesses PWs 3&4 on the scene of crime stands established by the prosecution which cannot be doubted. Yes, it was expected of the I/O to seize from the place of occurrence such articles or items including blood stained earth or empties, but the said lacuna in the investigation stands completely covered by the depositions of aforesaid eye witnesses PWs 3&4 and medical evidence of PW-8 Dr. Mohd Yousuf, therefore, for the said faulty investigation, the conviction rendered by the trial court cannot be faulted with and interfered. Our attention has not been drawn by Ld. Counsel for appellant to any major contradictions in the depositions of the aforesaid eye witnesses so as to disbelieve the entire prosecution case. Therefore, there is no reason for us to disbelieve the testimonies of aforesaid eye witnesses PWs 3&4 Mst. Rehmati & Mst. Rafiqa which stood corroborated by the medical evidence of PW-8 Dr. Mohd Yousuf. There is overwhelming evidence on record to show that the incident had taken place in village Bagbal D.H. Pora District Kulgam. Once the genesis of the occurrence is proved, it is now settled principle of law, that contradictions which are minor in nature would not be sufficient to dispel the entire 27 CRA No. 9900003/2017 prosecution case. The arguments advanced by Ld. Counsel for appellant/convict, therefore, hardly has any merit.
13. Appellant/convict has examined 3 witnesses in defence namely, DW-1 Manzoor Ahmed Teeli, DW-2 Jozi Akhter & DW-3 Mst. Rafiqa (cousin sister of deceased). DW-1 Manzoor Ahmed Teeli in his deposition before the trial court has not denied the occurrence, but has stated that gun men were running from the place of occurrence who were having closed face and he could not identify them, however, he saw Mst. Rehmati & Mst. Rafiqa in their house at the time of occurrence, and people were saying that Hamid Teeli was also accompanying the gunmen and fired upon the deceased. DW-2 Jozi Akhter in her deposition before the trial court has also not denied the occurrence, but has only stated that the mother and wife of the deceased were present in their house on the day of occurrence, 2/4 masked persons who were in Army uniform entered in the house of deceased and none identified them, however, on question by the PP in her cross-examination she has stated that she has seen the accused entering in the house of deceased having gun in their hands. DW-3 Mst. Rafiqa (cousin sister of deceased) though was cited as prosecution witness, but she has appeared as a defence witness, and in her testimony before the trial court she has categorically stated that 2 unknown persons in Army uniform who were not having guns entered inside the house of deceased where she alongwith other family members were sitting in a room, however, in her cross-examination by PP she has stated that while she was sitting in a room gunman entered there and fired upon, whereby, she received injuries on her thigh while deceased was killed on spot. The critical appraisal of the depositions of defence witnesses aforesaid, clearly establish that occurrence has taken place in the house of the deceased. Though the defence witnesses have tried their utmost to put forth evidence that they have not identified the appellant firing upon the deceased, but in view of the cogent, trustworthy and reliable evidence led by the eye witnesses PWs 3&4 namely, Mst. Rehmati & Mst. Rafiqa and corroborated by medical evidence of PW-8 Dr. Mohd Yousuf, there is no reason for us to disbelieve their testimonies. There is overwhelming evidence on record to show that the incident had taken place in village Bagbal D.H. Pora District Kulgam. Once the genesis of the occurrence has been proved by the prosecution evidence in the case in hand, the defence evidence which does not dispute the occurrence, would not be sufficient to dispel the entire prosecution case.
28 CRA No. 9900003/201714. After churning the entire prosecution evidence once again by us being the First Court of Appeal, we are of the considered view, that the prosecution has been able to prove the charges punishable u/ss 302/452/34 RPC r/w 7/25 of Arms Act against appellant beyond any reasonable doubt, and therefore, his conviction for the said charges deserves to be upheld. The net result now surfaces is, that instant appeal stands dismissed, while the conviction and sentence rendered by the trial court for commission of offence u/s 302/452/34 RPC r/w 7/25 of Arms act against appellant/convict stands upheld and confirmed. Confirmation Cr. Ref. No. 4/2016 is answered accordingly. Registry to send the record to the concerned trial court alongwith copy of the judgment. Jail Superintendent where the appellants have been presently lodged be also informed of the outcome of the appeal.
(Mohan Lal) (Vinod Chatterji Koul)
Judge Judge
SRINAGAR
13.09.2023
Ayaz Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No