Jammu & Kashmir High Court - Srinagar Bench
Abdul Waheed Naik S/O Ahmadullah vs State Of J&K Through Police Station on 11 September, 2023
Bench: Vinod Chatterji Koul, Mohan Lal
Sr. No.1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRA No. 9900003/2011
Reserved on :13.06.2023
Pronounced on : 11.09.2023
Abdul Waheed Naik S/O Ahmadullah .....Appellant(s)
Naik, R/O Thachi Tehsil Banihal District
Ramban.
Through :- Sh. M.A. Qayoom, Advocate.
V/s
State of J&K through Police Station .....Respondent(s)
Banihal.
Through :- Sh. Satinder Singh Kalla, 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 and orders dated 28.11.2011 & 29.11.2011 rendered by the court of Ld. Pr. Sessions Judge Ramban in case titled State Vs. Abdul Wahid bearing file No. S.T. No. 07/2004, whereby, appellant has been found guilty, convicted and sentenced to life imprisonment and fine of ₹ 10000/- for commission of offence punishable under section 302 RPC and for rigorous imprisonment for a period of 7 years and fine of ₹ 10000/- for commission of offence punishable under Section 27(2) of Arms Act in case FIR No. 29/2003 of Police Station Banihal.
2. Aggrieved of and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has assailed their legality, propriety and correctness and has sought their setting aside/quashment on the following grounds:-
(i) that after framing charges against the appellant on 28.09.2004 who pleaded not guilty to the charges, prosecution examined as many as 13 witnesses including the Doctor and investigating officer (I/O), the evidence adduced by the prosecution in support of his case was so inconsistent, contradictory and incredible that no conviction could be based on that evidence by the trial court against the appellant;
(ii) that out of 13 prosecution witnesses, PWs Ghulam Nabi, Abdul Sattar, Taja Begum, Gull Mohammad, Mohammad Sharief, Ghulam Akbar & Mohammad Yousaf have stated before the trial 2 CRA No. 9900003/2011 court that they have no personal knowledge of occurrence; Dr. Sameer Abdullah has deposed about the post-mortem and HC Ram Raj has deposed about investigation of the case; the evidence of PW Khurshid Ahmed (eye witness) and PW- Ghulam Qadir was the only evidence which had to be appreciated by the trial court in its proper and correct perspective; PW Khurshid Ahmed (eye witness) has stated before the trial court that when accused shot at Zarina he came out and raised hue and cry, while Akbar Lone and Qadir came on spot, from the reading of evidence of PW Khurshid Ahmed it is clear that Akbar Lone and Qadir came on spot only when Khurshid raised hue and cry and neither Akbar nor Qadir were present at the time when it is alleged that appellant had fired Zarina;
(iii)that the Doctor produced by the prosecution before the trial court has also not supported the case of prosecution, in his statement doctor has stated that he conducted post-mortem of the deceased and police did not show him any weapon of offence at the time of post-mortem , he has also admitted that he did not given dimension of injuries in the report, he has admitted that duration of injures was 6-72 hours; it is submitted that when the alleged weapon of offence is not shown to doctor and he has not opined about the use of that weapon in the commission of offence, the evidence of doctor is not helpful to the prosecution in proving the guilt of accused, the trial court having not gone into the evidence of doctor in it's true and correct perspective, therefore, has committed grave error of law in passing the impugned judgment and orders;
(iv) that the prosecution has not produced any expert evidence in the case, police has not seized the gun which had allegedly been used in the commission of crime, the seized empty case of "AK 47 Rifle" had also not been sent for chemical examination, the trial court has passed the impugned judgment without jurisdiction which is liable to be quashed;
(v) that the investigating officer (I/O) had himself stated before the court that he had not got the identification parade of accused conducted as the charge sheet against accused was laid before the trial court u/s 512 Cr.pc, accused was not arrested by him and two days after the occurrence he came to know that accused had surrendered with army, he tried his best to arrest the accused during investigation, but the army did not handover the accused to him, investigation was handed over to him by SHO Banihal, he recorded the statements of witnesses on the day of occurrence and had prepared the site plan on 30.03.2003, the case of prosecution is full of suspicion and contradictions;
(vi) that the evidence produced in defence by the appellant has not been properly appreciated by the Trial Court which has erroneously come to conclusion that deceased was shot by the accused on 27.03.2003 in the morning on her head when she denied to provide food to him .
3. Respondent has opposed and contested the appeal on the premise, that the Ld. Trial Court has appreciated the evidence and material on record and has 3 CRA No. 9900003/2011 rightly convicted appellant for commission of offences u/s 302 RPC r/w Section 27(2) Arms Act, whereby, appellant has been found guilty and sentenced to imprisonment for life and fine of Rs. 10000/- for commission of offence under section 302 RPC and rigorous imprisonment for 7 years and fine of Rs. 10000/- for commission of offence under section 27(2) Arms Act. It is contended, that appellant after a full dress trial, after appreciating the evidence on record by the trial court in it's right perspective has been convicted and sentenced. Prayer has been made for affirmation of the conviction and sentence.
4. Sh. M.A. Qayoom Ld. Counsel for appellant/convict has submitted written arguments in addition to his oral submissions and has sought the acquittal of appellant/convict on the following counts:-
(i) It is argued, that it is evident from the prosecution case, that excepting Khurshid Ahmad, no one has seen any militant entering the house of Abdul Rashid and firing on Zarina Bano (deceased), in his statement recorded u/s 161 Cr.P.C. Khurshid Ahmad who was 10 years of age as on 30.03.2003 when his statement u/s 161 Cr.P.C. was recorded, has stated, "that an unknown militant had come to the house and had asked for food, Zarina Banoo told the unknown militant that there is some "atta" but no "roti" and that Mohammad Ashraf has gone to bring "atta" and when he will bring "atta" he will be given the food, he had also stated that the militant was wearing a Shalwar/Kurta, which was not of black colour, but he was wearing a black jacket and had an AK-47 rifle in his hand and he fired on Zarina Banoo and ran away, he had also stated that he did not know the name of the militant but he will identify him, he had also stated that Zarina Banoo fell down, she was drenched in blood and on his weeping, his younger brother and sister also started weeping and in the meanwhile their Grandfather Mohammad Akbar came and he also started weeping and thereafter, other people of the village also came and they took Zarina to the hospital", however, in his statement which was recorded by the Court on 29.01.2005, he did not stick to what had been stated by him in his statement u/s 161 Cr.P.C, he not only changed his statement from the one recorded u/s 161 Cr.P.C. but also stated that the accused, who was present before the Court, killed the deceased Zarina with bullet, since Khurshid Ahmad was 12 years of age at the time of recording his statement on 29.01.2005, therefore, before recording his statement the Court put some questions to him and also appended a certificate to the effect that after putting the questions the Court considers that the child is competent witness and can understand and answer the question, hence statement is recorded, however, the method and manner in which the trial court recorded the statement of Khurshid Ahmad is contrary to what has been laid down by the Hon'ble Supreme Court by it's authoritative pronouncements that where the witness is a child it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that 4 CRA No. 9900003/2011 in some cases it may be necessary to reject the evidence altogether, it has further been held that the evidence of the child must reveal that he was able to discern between "right" and "wrong", the statement of Khurshid Ahmad who is alleged to be the only witness to the occurrence being in conflict with his statement recorded by the police u/s 161 Cr.P.C. and furthermore the Trial Court having not put to the witness the questions which were required to be put to him, therefore, his testimony is to be rejected and consequently the impugned orders are liable to be set aside. Reliance has been placed on (i) (2011) 4 SCC 786 [State of M.P. Vs. Ramesh and Another] & (ii) (2008) 12 SCC 565 [Nivrutti Pandurang Kokate & Ors. Vs State of Maharashtra];
(ii)It is argued, that in his statement recorded u/s 161 Cr.P.C. Khurshid Ahmad had stated that he does not know the person who fired on Zarina but he can identify him, all other witnesses whose statement was recorded u/s 161 Cr.P.C. had also stated that they do not know the person who fired on Zarina, it was obligatory on the prosecution to conduct an identification parade, identification parade is conducted to find out whether the suspect is the real offender or not, notwithstanding the fact that identification parade is not a substantive piece of evidence by itself but such a parade is designed to furnish evidence to corroborate the evidence of witness, where the accused person is not known previously to the witnesses, such identification is must, where the assailants are not known to the witness by name, there appears to be no reason why a test identification parade was not held, which is a serious lacuna in the prosecution case. Reliance has been placed on, AIR 2003 SC 2577 [Lakhwinder Singh And Others Vs. State of Punjab];
(iii) It is argued, that the police has also not sent the blood stained clothes of deceased Zarina for chemical examination, prosecution has failed to recover blood stained material from the place of occurrence as also the weapon of offence or the empty cartridges, pallets or any other weapon used for commission of crime, prosecution has not proved its case beyond reasonable doubt, therefore, appellant/convict entitles to be given benefit of doubt. Reliance has been placed on, (2023) 1 SCC 714 [Munuwa @ Satish vs. State of Uttar Pradesh];
(iv) It is argued, that in the instant case prosecution has not seized the gun used by the assailant, empty cartridge of AK47 seized has not been sent to ballistic expert for examination, the blood stained clothes which were seized have also not been sent for examination, the mat and other material has neither been recovered from spot nor sent for chemical examination, the gun and the cartridge has not been sent for ballistic expert, if the weapon of alleged offence and other implements, mat with blood stains on it are not sent for chemical examination the conviction of accused cannot be sustained. Reliance has been placed on (2010) 1 SCC 386 [Prabir Mondal & Anr. Vs. State of West Bengal];
(v) It is argued, that if the name of assailant is not mentioned in the FIR it also throws doubt on the prosecution version. Reliance has been placed on, 2013 SC 2354 [Khairuddin and Others vs. State of West Bengal].
(vi) It is argued, that all the witnesses who have been produced by the prosecution are related to the deceased, in as much as, the sole eye 5 CRA No. 9900003/2011 witness is also related to the deceased, therefore, the principle of strict scrutiny has to be applied to the case in hand, the trial court has committed a grave error of law rendering the impugned judgment and orders which are liable to be set aside. Reliance has been placed on, AIR 2017 SC 2114 [Baliraj Singh vs. State of M.P.].
5. Sh. S. Satinder Singh Kalla Ld. AAG has supported the impugned judgment of conviction and order of sentence and has sought confirmation/affirmation of impugned judgment on the following grounds:-
(i) It is argued, that the statement of PW 4 recorded by the I.O, is sufficiently suggesting that it was only the accused identified by the PW 4 who alone is the person who could have killed the deceased as PW 4's statement established the fact that he is the next door neighbour of the house where occurrence has taken place, and also the person who after hearing the gunshot is indeed first person to identify the accused while accused was coming out from the house where crime was committed immediately after gunshots were heard and he also reached the place of occurrence, besides all these facts, the PW 4 has also established that the accused was wearing black and carrying AK 47 which sufficiently corroborates the prosecution case as in the instant case weapon used in the commission of offence was AK-47;
(ii)It is argued, that PW-4 has also turned up before the Court and has testified against the accused, the testimony of the PW-4 has neither been shaken nor is his testimony contradicting the version of any of the witnesses except the contradiction with respect of colour of clothes which he has stated to be black and the only contradictory statement given by the witness i.e. PW 3 who was minor at that time has stated that the accused was not wearing black shalwar kurta but a black Jacket which is a minor contradiction and therefore not sufficient to vitiate the prosecution case;
(iii)It is argued, that PW-5 has also turned before the Trial Court and has deposed and corroborated his earlier statement which was recorded u/s 161 Cr.P.C by the I.O wherein he has stated that he was working in Jungle while he heard the gun shot which made him move back to village and on way he saw the accused Ab. Wahid who was wearing black clothes and carrying AK-47 and running towards Jungle, the statement of the PW-5 gets support from the statement of PW-4 and other witnesses sufficiently and clearly suggests that the accused Abdul Wahid has committed murder;
(iv) It is argued, that statement of PW-8 has been recorded by the I.O u/s 161 Cr.P.C and he has deposed that on 27.03.2003 in morning he was inside his house and suddenly he heard the Gun Shot, he rushed outside quickly of his house and saw one terrorist namely Abdul Wahid Naik coming from the house of Ab. Rashid and running towards Jungle, he has further stated that the accused was wearing black clothes and carrying AK-47 rifle, he reached towards the house of Ab. Rashid and found that the deceased has been shot, he turned up before the Court and has corroborated his earlier statement without contradicting with any other witness;
(v) It is argued, that in addition the witnesses stated herein above, I.O has recorded statement of some other witnesses who are not the eye 6 CRA No. 9900003/2011 witnesses but hearsay witnesses so their testimony is important and while reading their testimony with the testimony of other witnesses and the eye witness namely Khurshid Ahmad (PW-3) in the case it is only the accused person namely Abdul Wahid Naik who has killed the deceased and none else, the ocular and medical evidence support that the accused had the intention to kill the deceased and had hit the vital part i.e. head of the deceased, meaning thereby that he had intentionally shot the deceased to kill her, the prosecution therefore successfully establish the charge against the accused for the commission of offence punishable u/s 302 RPC and 7/27 Arms Act, the Trial Court has rightly taken the cumulative evidence into consideration and convicted the accused for the commission of offences punishable u/s 302 RPC and 7/27 Arms Act;
(vi) It is argued, that the accused was absconding from the day of occurrence and was proceeded under Section 512 Cr.pc and final report/charge sheet submitted in his absence, accused has turned up later before the trial court after almost 8 months after presentation of final police report, during investigation it was not possible for the investigating agency to conduct the test identification parade (TIP) of the accused who was absconding, however there is sufficient evidence regarding the identification of the accused who was seen coming out from the house which is the place of occurrence, immediately after the gun shot was heard by the neighbours who were so quick to move outside and had seen the accused coming out from the place of occurrence, the witnesses have not only named the accused in their statement u/s 161 Cr.P.C but have also identified the accused later in the court during their examination including the only eye witness namely Khurshid Ahmad who has also identified the accused in the court and has established in clear terms that the accused is the person who had shot the deceased on 27.03.2003, the evidence of test identification parade (TIP) is only corroborative value, substantive piece of evidence is identification in the court and all the PWs were able to identify the accused in the Court. Reliance has been placed on, CRIMINAL APPEAL NO. 445 OF 2009 (Arising out of SLP (Crl.) No.3895 of 2006) Supreme Court of India [Santosh Dev Dass Behade and ors V/S State of Maharashtra];
(vii) It is argued, that though the weapon of the offence was not seized, the prosecution has otherwise proved its case based on the testimony of independent witness and the same has been corroborated with the medical evidence which succeeded in proving the case against the accused, failure to recover the weapon is thus not fatal to the prosecution case. Reliance has been placed on, (2012) 12 SCC 339 [Ram Singh V/S State of Rajasthan];
6. We have heard Sh. M.A. Qayoom Ld. Counsel for appellant & Sh. S. Satinder Singh Kalla Ld. AAG for respondent. We have also perused the record of the trial court. The case of the prosecution has to be tried to be proved by (i) direct evidence of sole eye witness PW-3 Khurshid Ahmed,
(ii) Circumstantial evidence of PW-4 Ghulam Qadir, PW-5 Ghulam Akbar, PW-6 Mohd Yousaf, PW-7 Gull Mohd, PW-8 Mohd Sharief, PW-9 Ghulam 7 CRA No. 9900003/2011 Nabi, PW-10 Abdul Sattar, PW-11 Taja Begum, and medical evidence of PW-12 Sameer Abdul Butt. The appellant in the trial court has led defence evidence to demolish the case of prosecution and has examined two defence witnesses namely, DW-1 Rehmatullah & DW-2 Mohd Shafi.
7. Appellant/convict has preferred this appeal from jail which has been registered as criminal appeal No. 9900003/2011, and the Ld. Principal Sessions Judge Ramban has also made reference to this court for confirmation of conviction and sentence u/s 374 Cr.pc vide his order dated 29.11.2011 which has been registered as confirm No.18/2011. The Criminal Appeal as well as the reference shall be disposed of by this judgment.
8. To prove the allegations against appellant/convict, the prosecution has led oral as well as documentary evidence. The prosecution has examined as many as 10 witnesses out of listed 14. The prosecution has examined oral witnesses as under:-
PW Name Role
3 Khursheed Ahmed Eye witness.
4 Ghulam Qadir Eye witness who lodged FIR.
5 Ghulam Akbar Lone Eye witness.
6 Mohd Yousuf Lone Eye witness.
7 Gul Mohd Witness to seizure of empty cartridge,
clothes of deceased and receipt of dead
body of deceased.
8 Mohd Sharief Witness to seizure of empty cartridge,
clothes of deceased and receipt of dead
body of deceased.
9 Ghulam Nabi Eye witness.
10 Abdul Satar (f/o deceased) Circumstantial witness.
11 Taja Begum (m/o deceased) Circumstantial witness.
12 Dr. Samir Ahmed Bhat (M.O, Witness to post-mortem of deceased.
Ramsoo)
13 HC Ram Raj (I/HC/4 Police Investigating officer (I/O) of the case.
Post Ramsoo)
9. 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 translated by the trial court in English. Relevant portions of the testimonies of the prosecution witnesses are summarized as under:-
PW-3 Khurshid Ahmed (eye witness) has stated that accused was known to him who had fired at deceased Zarina. The deceased at the time of the incident was at his home and he was also present there. The accused had 8 CRA No. 9900003/2011 shot her at 7 am. His mother had gone to Khari at her maternal home and his father had gone to Jammu in connection with labour work. When accused shot at Zarina he came out raising hue and cry and Akbar Lone and Qadir came on spot. Other villagers also assembled and took her to Ramsoo. After 2/3 days he had gone to Police Post Ramsoo. The deceased was his paternal aunt in relation. The deceased had come to their house as his mother had gone her maternal home. On his cross-examination he stated that the militants while moving in villages did not keep their faces hidden. He had remained inside the room for 10/12 minutes after the fire was shot. The accused had fled away. He was present at the time of the occurrence and other people had come after 7-8 minutes of his raising hue and cry. The accused while being fleeing had been spotted by his uncle Qadir. The accused was wearing a black dress at that time. He used to visit their house earlier also and used to take food. He further stated that he had not been tutored by anybody to make the statement in the court. PW Ghulam Akbar is his grandfather.
PW-4 Ghulam Qadir (eye witness who lodged FIR) has stated that accused was known to him. He had shot dead the daughter of Sattar Mohd. When he heard the sound of fire he came out from his house and saw that accused was coming out of the house of Rashid and after looking here and there he had fled away. The accused had fired at the deceased in the house of Rashid. He went to the house of Rashid immediately. The deceased had fallen down and two boys including PW Khursheed were on spot. He called the people and the deceased was shifted to Ramsoo Police Post. The deceased was alive at that time but did not make any statement. He had reported the matter to Police vide report (EXPW-4/l). Police had recorded his statement. The deceased's father Satar had gone to Punjab for labour work. On his cross-examination he has stated that the occurrence had taken place in the morning when there was light. He was in his own house at that time and had heard the sound of fire from the other house. He had not seen the accused shooting at the deceased. The accused had surrendered and was working with army. The police had not got the accused identified by him by identification parade. At the time of shooting his wife was also present at his home. She had also come out after hearing the gun shot. He was the first to enter the room where the deceased was living. Accused along with another militant used to visit their village earlier and had also gone to his house 2-4 times. The accused is resident of Thachi. The accused was alone on the day of occurrence. The report had been lodged same day at Police Post. There is a distance of 10-20 steps between his house and the place of occurrence. The police had conducted whole of the proceedings at Police Post and had not visited on spot.
PW-5 Ghulam Akbar Lone (eye witness) has stated that accused was known to him. He had gone to the forest and on returning PW Khursheed and some women were found weeping. PW Khursheed told him that a militant had come, demanded food from the deceased and fired at her. The deceased was daughter of his brother. The occurrence had not taken place in his presence and he had reached the place of occurrence later. PW Khursheed told him that militant Danish had fired at deceased and that he can identify the accused. The deceased was taken by him and other villagers at Ramsoo Police Post and lodged the report. She was buried on the same day at 5 pm. PW Khursheed's mother had gone to her parental home. On his cross-examination he has stated that PW Ghulam Qadir at the time of occurrence was at his home. Other people had come after hearing hue and cry. PW Ghulam Qadir had reached the place of occurrence before him.9 CRA No. 9900003/2011
PW-6 Mohd Yousuf Lone (eye witness) has stated that he had returned from Haryana on the day before the occurrence which had taken place at the house of his cousin Abdul Rashid Lone. His cousin's son came to him at 8.00 or 8.30 on the day of occurrence and told him that somebody had killed Zarina and also told that the name of the assailant was Abdul Waheed who was wearing black jacket and 4-5 persons had assembled. The deceased was shifted to Ramsoo. He had made the statement to police. On his cross-
examination he has stated that the name of the accused had been told to him by PW Khursheed, who is his nephew. When he had reached place of occurrence other villagers had also assembled His statement had been recorded at Police Post Ramsoo. He denied that he had made statement as attributed to him under section 16l Cr.P.C that on denial of food to the militant the deceased had been shot dead.
PW-7 Gul Mohd (witness to seizure of empty cartridge, clothes of deceased and receipt of dead body of deceased) has stated that on 27.3.2003 a child came to him at his house and told that a murder had taken place at Batbass. He went on spot and found a dead body living in the house of Abdul Rashid. The dead body had a bullet injury. The dead body was taken to Ramsoo Police Post where FIR was lodged. Post-mortem was conducted at Ramsoo Hospital and the dead body was handed over after post-mortem. The clothes of the deceased were seized by police at hospital. He admitted the contents of seizure memo (EXPW-8/3) regarding clothes and seizure memo (EXPW-8/1) regarding empty of bullet as correct. Police had recorded his statement. On his cross-examination he denied having any personal knowledge about the occurrence. His signatures had been obtained at Police Post Ramsoo on the day of occurrence itself. The house where dead body was lying is surrounded by 4-5 houses of Gh. Qadir, Ali Mohd, Ahmedullah Malik, Gani Malik and Lasu Sohil. PW Ghulam Oadir is grandfather and PW Mohd Akbar is the uncle of the deceased. PW-8 Mohd Sharief (witness to seizure of empty cartridge, clothes of deceased and receipt of dead body of deceased) has stated that accused was known to him. The deceased had also been known to him. The distance where the accused had committed a murder on 27.3.2003 was half kilometre from his house. He was at home along with family and heard a fire sound and saw that accused was coming out from the house where he had committed murder. While coming towards his house he declared in a loud voice that he had killed Zarina daughter of Satar. The accused came to his house lifted a blanket and left onwards jungle. He further stated that he went on spot where other people had also assembled. The deceased was shifted to Ramsoo Police Post and then to Ramsoo Hospital. He had also accompanied. Post-mortem was conducted on her. The empty of the rifle lifted from the occurrence was also handed over to Ramsoo Police which was seized vide seizure memo (EXPW-8/1). The dead body of the deceased had been handed over to her legal heirs for burial vide receipt (EXPW-8/2). The clothes of the deceased had also been seized vide seizure memo (EXPW-8/3). He admitted the contents of all these memos as correct and identified his signatures thereon. On his cross-examination he has stated that he had reached the place of occurrence after 15 minutes. He had not seen the occurrence himself, however, had heard the gun shot. Police had not visited on spot and he had handed over the empty of AK 47 to police. When he reached on spot, other people including Ghulam Qadir were already present there. He stated that his house is opposite the house where the occurrence had taken place. The accused had been seen at his house by 10 CRA No. 9900003/2011 other people also inducing Abdul Rashid, Ghulam Nabi, Ali Mohd and his family members.
PW-9 Ghulam Nabi (eye witness) has stated that on 27.3.2003 while being at his home he had heard gunfire in the morning. He came out of his house and saw children crying and people moving towards house of Rashid. He went on spot and found the dead body of the deceased Zarina hanging there. It was told that a militant came demanding food and on denial he had shot the deceased dead. Oadir Lone, Akbar Lone and Star were present at the place of occurrence. He and lamberdar called people and shifted the dead body to Ramsoo Police Post. Qadir Lone and Akbrar Lone had told him that a person from Thachi had killed deceased who used to come earlier as well. A case was registered at Police Post Ramsoo and post-mortem was conducted of the deceased at hospital. On his cross-examination he has stated that he resides near the place of occurrence where there are 30-35 houses in the locality. He denied having any personal knowledge of the occurrence and that his statement had been recorded by the police. PW-10 Abdul Satar ( f/o deceased, circumstantial witness) has stated that the deceased was his daughter. Accused was also known to him. In the month of March when he had gone to Haryana for labour work and on returning he was told by his family that accused had come to their house and demanded food. As the food was not ready the accused shot dead his daughter. On his cross-examination he has stated that all his eight children and wife were at his house on the day of occurrence as told to him by his wife.
PW-11 Taja Begum (m/o deceased, circumstantial witness) has stated that accused was known to her. The deceased was her daughter. The deceased had gone to the house of Abdul Rashid. PW-Khursheed her grandson came to their house to call her. She went to the place of occurrence and found her daughter lying in an injured condition. She called the deceased but she did not speak. PW- Khursheed told her that the accused had fired at deceased as he was demanding food from her. Akbar Lone, Qadir Lone, Yousuf Lone and Gul Mohd Numberdar were also present at the place of occurrence. They shifted the deceased to Ramsoo and she expired on way at Nachilana. On her cross-examination she has stated that she had been told by PW- Khursheed that accused had shot at deceased.
PW 12 Dr. Samir Ahmed Bhat (M.O. Ramsoo) has stated that on 27.3.2003 as Medical Officer SHC Ramsoo, he conducted post-mortem of deceased Zarina Bano daughter of Abdul Satar Lone R/O Bhatibas Shagan Tehsil Ranmban aged 50 years brought by Incharge Police Post Ramsoo. On examination a gunshot injury, wound of entrance middle of left parietal region and the wound of exit right parietal region was found. There was no other mark/injury on the body of the deceased. On opening the head scalp torn on the biparietal regions alongwith underline bones of the skull fracture, membranes of the brain torn and haemorrhagic and the brain matter completely macerated. After post-mortem he had issued the post- mortem certificate (EXP.SA12) and admitted its contents as correct. In his opinion the deceased had died of cardio pulmonary arrest as a result of brain injury due to gunshot. The duration of injuries was 6-72 hours. The injury caused was sufficient to cause the death of the deceased. On his cross- examination he has stated that he had conducted post-mortem at Ramsoo at 12 '0 clock. The police had not been shown any weapon of offence at the time of post-mortem. He had not given the dimensions of the injuries.
11 CRA No. 9900003/2011PW-13 HC Ram Raj I/HC/4 Police Post Ramsoo (I/O of the case) has stated that he as I/O had investigated the case in hand registered vide FIR No. 29/2003 while being posted at Police Post Ramsoo on 27.3.2003. He drafted custody memo (Ext-PII) of the dead body. Fardsuretehal (Ext-Pl I/), took photographs marked as 'A B' and 'C' of the deceased, seized her clothes vide seizure memo (ExPW-8/3) handed over the dead body to her legal heirs vide receipt (EXPI-8/2), prepared the site plan(Ext-Pl l/I) of the place of occurrence and seized empty of AK 47vide seizure memo (ExPW-8/1). He admitted the contents of the seizure memos as correct and also identified the seized items. He had recorded statements of witnesses in terms of section 161 Cr.P.C and from the evidence on record the accused was found to have committed the offence under sections 302 RPC and 7/27 Arms Act. On his cross-examination he has stated that the application that was presented to him did not contain the name of any accused but the name of the accused had been told to him verbally. All the witnesses whose statements had been recorded had named the accused. He had not got conducted the identification parade of the accused as the charge sheet was laid under section 512 Cr.P.C. The accused had not been arrested by him. Two days after the occurrence he had come to know that accused had surrendered with the army. He had tried his level best to arrest the accused during investigation but the army had not handed him over to police. He had visited on spot 3-4 times in connection with investigation. He had been assigned the investigation of the case by SHO Police Station Banihal. The house of the deceased comprised of four rooms and surrounded by the houses of other villagers. The seized empty was of AK 47 rifle. The gun had not been seized in the case. The empty had been handed over to him by PW Abdul Rashid after lifting from the room. The photographs of the deceased had been taken at hospital before post-mortem. He had recorded statements of the witnesses on the day of occurrence itself. He had prepared site plan on 30.03.2003.
10. All the incriminating evidence appearing in the depositions of prosecution witnesses were put to the accused under the scheme of Section 342 of Code of Criminal Procedure (hereinafter referred as the „Code‟). Appellant/convict denied all the incriminating evidence, pleaded innocence and his false implication in the case. Appellant/convict to demolish the case of prosecution has examined two witnesses in his defence namely, DW-1 Rehmatullah & DW-2 Mohd Shafi. The depositions of defence witnesses recorded by the trial court is summarized as under:-
DW-1 Rehmatullah has stated that accused was known to him. He had heard that the deceased Zarina daughter of Abdul Satar Lone of Shagan had been killed by militant. The accused was not a militant and had not killed the deceased. Abdul Satar Lone and the relatives of the accused had a land dispute and were having enmity over that. On his cross-examination he has stated that the distance between Thachi and Shagan villages is about 15 Kilometres.
DW-2 Mohd Shafi has stated that accused was known him being his neighbour. Shagan was at a distance of 15-16 Kilometres from Thachi. He denied having knowledge as to who was Zarina and how she had died. The accused had not been associated with any terrorist organization and he had 12 CRA No. 9900003/2011 not killed any woman in the village. The accused was only son of his parents and the people had enmity with respect to land. Abdl Satar of Shagan had also animosity with him over the land, as he wanted to grab the land of the accused. On his cross-examination he has stated that accused had not surrendered before the army. He also stated that it was incorrect that accused had been taken away by militants. Abdul Satar was not known to him. Complainant Qadir Lone was known to him. PW's Yousuf Lone and Akbar Lone were also known to him.
st
11. The 1 limb of arguments canvassed by Ld. Counsel for appellant/convict is, that from the prosecution case it is discernible that except PW-3 Khurshid Ahmed (eye witness) none of the other witnesses have seen any militant entering in the house of Abdul Rashid and firing upon Zarina Banoo (deceased), PW-3 Khurshid Ahmed who was 10 years of age on 30.03.2003 when his statement u/s 161 Cr.pc was recorded by I/O had stated that an "unknown militant whose name he does not know had come in the house asked for food, Zarina Banoo (deceased) told the unknown militant that there is some "atta" but no "roti" and that Mohd Ashraf has gone to bring "atta" and when he will bring "atta" he will be given food, but the militant wearing shalwar/kurta/black jacket having Ak-47 Rifle in his hand fired on Zarina Banoo and ran away", however in his statement recorded before the trial court on 29.01.2005 PW-3 Khurshid Ahmed did not stick to his earlier stand made u/s 161 Cr.pc but also stated that accused who was present in the court killed deceased Zarina with bullet; it is vehemently argued, PW-3 Khurshid Ahmed at the time his statement was recorded in the court on 29.01.2005 was 12 years of age, before recording his statement court put some questions to him and appended a certificate to the effect that he is competent witness and can understand and answer the questions, therefore, his statement was recorded, however the method and manner in which trial court has recorded the statement of PW-3 Khurshid Ahmed is contrary to what has been laid down by the Hon'ble Supreme Court by it's authoritative pronouncements that where the witness is child it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking truth and state why they think that, otherwise the credibility of child witness can be seriously affected, the evidence of child must reveal that he was able to discern between "right" and "wrong"; it is strenuously argued, that statement of PW-3 Khurshid Ahmed the solitary eye witness to the occurrence has been recorded in conflict with his statement recorded by police u/s 161 Cr.pc and furthermore the trial court has not put questions to the said witness to 13 CRA No. 9900003/2011 ascertain whether the child understands the duty of speaking truth, therefore the testimony of PW-3 Khurshid Ahmed requires to be rejected consequently the impugned judgment and order of conviction is liable to be set aside.
In (2011) 4 SCC 786 [State of M.P. Vs. Ramesh and Another] relied by Ld. Counsel for appellant/convict, Hon'ble Supreme Court of India while setting aside the judgment of High Court of Madhya Pradesh dated 31.03.2004 acquitting the accused and restoring the judgment/order of the trial court dated 16.08.1996 convicting respondents/accused for commission of offences punishable under section 302 IPC has culled out certain parameters/factors for recording statement of a child witness by Magistrate or Judge during trial and in paras 5,6,7,8,10&24 of the judgment held as under:-
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
CHILD WITNESS:
6. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54, this Court examined the provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.
The Court further held as under:
".....It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate...."
7. In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, this Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
8. In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, this Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child 14 CRA No. 9900003/2011 witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."
10. The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292).
24. A very heavy reliance has been placed by defence counsel Ms. K. Sarada Devi on the statements of defence witnesses, particularly, Radha Bai (D.W.1). However, it may be relevant to point out the initial part of her statement made in examination-in-chief:
"In view of the witness's age before she was sworn she was asked as under:
Q. Are you literate? Have you gone to school for reading? A. No. Q. Do you understand right or wrong?
A. I do not understand.
Q. Do you understand Saugandh or Sau (Oath or hundred).
A. I do not know.
Considering the said answers of the witness it appears that the witness does not understand right, wrong or oath, therefore the witness was not sworn." In view of the above, we are of the view that it cannot be safe to rely upon her evidence at all. In (2008) 12 SCC 565 [Nivrutti Pandurang Kokate & Ors. Vs State of Maharashtra] further relied by Ld. Counsel for appellant/convict, Hon'ble Supreme Court of India while affirming the judgments of trial court and Division Bench of the Bombay High Court and convicting the appellants for commission of offences punishable under Sections 302/201/34 IPC and observing that child witness of 12 years of age had intellectual capacity to understand questions and give rational answers thereto, in paras 8&9 of the judgment held as under;-15 CRA No. 9900003/2011
8. The age of the witness during examination was taken to be about 12 years. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States (159 US
523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001 (9) SCC 129)].
9. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows: (SCC p. 343, para 5): "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction.
In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to 16 CRA No. 9900003/2011 tutoring and often live in a world of make-believe.
Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
By the ratio decidendi of judgments of "Ramesh and Another" & "Nivrutti Pandurang Kokate" (Supra) the legal proposition is no longer res-integra that the Trial Court while recording the statement of child witness should always record in it's opinion that the child understands the duty of speaking truth, was able to discern between "right" and "wrong" and understands the sanctity of giving evidence on oath. Applying the ratios of judgments (Supra) to the facts of the case in hand, we find that the trial court while recording the statement of child witness PW-3 Khurshid Ahmed (12 years of age) on 29.01.2005 has not put questions to him as were required by the judgments of case laws (Supra) whether he understands the duty of speaking truth, is able to discern between "right" and "wrong" and understands the sanctity of giving evidence on oath. The certificate of the trial court appended at the bottom of the questions put to the child witness Khirshid Ahmed (PW-3) does not depict/demonstrate that the trial court has framed it's opinion that the said child witness understands the duty of speaking truth, is able to differentiate between right and wrong and understand the sanctity of recording his evidence on oath. As the trial court has made serious departure of law in recording the statement of aforesaid child witness, we are of the considered view, that the evidence of the said child witness namely Khurshid Ahmed (PW-3) is tutored, unworthy of credence, therefore, discarded and rejected.
nd
12. The 2 argument canvassed by Ld. Counsel for appellant/convict is, that PW-3 Khurshid Ahmed (eyewitness) in his statement recorded u/s 161 Cr.pc has stated that he does not know the person who fired on Zarina (deceased), all other prosecution eye witnesses in their statements recorded u/s 161 Cr.pc have also stated that they do not know the person who fired upon Zarina, it was obligatory on the part of I/O to get the Test Identification Parade (TIP) conducted to find out whether the suspect is the real offender or not, but in the case in hand no such Test Identification 17 CRA No. 9900003/2011 Parade (TIP) has been conducted by the investigating agency to find out whether appellant/convict was the real offender or not which is a serious lacuna in the prosecution case and demolishes the entire edifice of the prosecution version. Ld. Counsel for appellant/convict has relied upon judgment of Hon'ble Supreme Court reported in AIR 2003 SC 2577 [Lakhwinder Singh And Others Vs. State of Punjab] wherein Hon'ble Supreme Court while setting aside the conviction and sentence of the appellants for commission of offence of murder punishable under sections 302/149 IPC and observing that where the assailants were not known to the witness by name, not conducting Test Identification Parade is a serious lacuna in the prosecution case, in paragraph 43 of the judgment at page 13 observed as under:-
43. It is not in dispute that on the date of occurrence i.e. 24th December, 1996 the informant PW-14 did not know the names of any of the gunmen who had taken part in the assault. Similarly, PW-15 also did not know the names of the gunmen of Ranjit Singh and his father.
Admittedly, PW-14 came to know of their names 3-4 days later. We have earlier noticed that despite the fact that they did not know the names of any of the gunmen, the name of Paramjit Singh finds place in the first information report as well as in the marginal notes of the site plan, both prepared at the instance of PW-14. That apart, since the assailants were not know to this witness by name, there appears to be no reason why a test identification parade was not held. It is not in dispute that no test identification parade was held to identify the assailants and this also is a serious lacuna in the case of the prosecution.
Applying the ratio of judgment (Supra) to the facts of the case in hand, it is apt to reiterate here, that in a written complaint filed by PW-4 Ghulam Qadir with Incharge Police Post Ramsoo (Ramban) on 27.03.2003 it is alleged that on that day at 7.30am Zarina Banoo (deceased) was cooking food in her house, all of a sudden an unknown militant came inside and demanded food, the aforesaid Zarina told him that food was not yet ready and on this the militant with criminal intention fired at her who was shifted to Hospital but expired in the way which resulted in registration of FIR No.29/2003 for commission of offences punishable u/ss 302/7/27 Arms Act. In the FIR (EXPW-4/1), as well as in the statement of PW-3 Khurshid Ahmed (eyewitness) there is mention of unknown militant entering in the house of deceased. Even prosecution eye witnesses PW-4 Ghulam Qadir, PW-5 Ghulam Akbar Lone, PW-6 Mohd Yousaf Lone, PW-9 Ghulam Nabi 18 CRA No. 9900003/2011 in their depositions before the trial court have categorically stated that unknown assailant (militant) entered in the house of deceased and shot her dead. Law is well settled, that when the assailant was not previously known to the witness by name, it is obligatory upon the part of the investigating agency to conduct Test Identification Parade (TIP) to find out the real offender/culprit responsible for the commission of crime. In the case in hand, appellant/convict was not known to the witnesses previously by name, therefore, I/O was under legal duty to get the identity of appellant/convict established by getting his Test Identification Parade (TIP) conducted. For reasons best known to I/O, the Test Identification Parade (TIP) has not been held, therefore, identity of appellant/convict to connect him with commission of crime is doubtful, which is a serious lacuna in the prosecution case demolishing the entire edifice of the prosecution story entitling the appellant benefit of doubt and his acquittal.
rd
13. The 3 argument portrayed by Ld. Counsel for appellant/convict is, that I/O has not sent blood stained clothes of deceased Zarina for chemical examination, prosecution has failed to recover blood stained material as well as weapon of offence, empty cartridges, pellets or any other weapon used for commission of crime from the scene of occurrence, therefore, prosecution has failed to prove it's case beyond reasonable doubt entitling the appellant benefit of doubt leading to his acquittal. In (2023) 1 SCC 714 [Munuwa @ Satish vs The State Of Uttar Pradesh] relied by Ld. Counsel for appellant, Hon'ble Supreme Court while acquitting the appellants for commission of offences punishable u/ss 302/307/34 IPC by observing that where the prosecution fails to recover the weapon alleged to have been used in the incident alongwith empty cartridges etc., in paras 23 & 29 of the judgment held as under:-
23. Re: lack of material recoveries: In the present case, the accused are alleged to have attacked the Deceased with the aid of firearms, and the Deceased is supposed to have seven gunshot wounds, yet the prosecution has failed to make material recoveries from the place of the occurrence of the crime. The prosecution has neither produced the empty cartridges from the scene of the crime, nor the pellets from the Deceased's body. The prosecution has not been able to recover any weapons alleged to have been used in the incident. Further, it was incumbent upon the prosecution to examine the ballistic experts to prove 19 CRA No. 9900003/2011 whether the gunshots came from one or different guns. The prosecution however, failed to examine ballistic experts or even produce the empty cartridges. Perhaps it is in the circumstance of lack of any recovery of empty cartridges that the prosecution found it convenient not to examine a ballistic expert. Lack of such material recoveries compounds doubts about the story of the prosecution in the manner that they have set out.
29. Conclusions: Having considered the matter in detail, and having noted that the prosecution failed to recover blood-stained materials from the place of occurrence, empty cartridges, pellets, or any other weapon used for commission of the crime, coupled with the contradictions and unnatural conduct of the eye witnesses PW-1 and PW-6, and the inconsistencies in the two dying declarations, we believe that the prosecution has not proved the case beyond a reasonable doubt, and the accused are entitled to be given the benefit of doubt.
Ratio of the judgment (Supra) fully applies to the fact of the case in hand. It is the prosecution story, that on 27.03.2003 an unknown militant came inside the house of deceased Zarina Banoo (D/O PW-10 Abdul Sattar) demanded food from her and on not being provided food, he fired upon the said Zarina who later on was shifted to Hospital and died in the way. PW-6 Gull Mohammad and PW-8 Mohd Sharief are witnesses to the seizure of empty cartridges and clothes of deceased. Both these witnesses have testified before the trial court that empty bullet of the rifle was handed over to Ramsoo Police vide seizure memo EXPW/8/1. PW-13 HC Ram Raj (IHC/4 I/O of the case) has deposed before the trial court that seized empty was of AK-47 Rifle but the gun has not been seized in the case in hand. In light of ratio of the judgment (Supra) when the prosecution has failed to recover the weapon of offence and blood stained material from the place of occurrence, the prosecution story stands not proved, thereby, accused/appellant is entitled to benefit of doubt leading to his acquittal.
14. The 4th argument urged by Ld. Counsel for appellant/convict is, that the investigating agency has not seized the gun used by the assailant, empty cartridge of AK-47 seized has not been sent to ballistic expert for examination, blood stained clothes of deceased have also not sent for serological examination, the other implements, mat with blood stained on it not sent for chemical examination, therefore, conviction of appellant cannot be sustained. In (2010) 1 SCC 386 [Prabir Mondal & Anr vs State Of West 20 CRA No. 9900003/2011 Bengal] relied by Ld. Counsel for appellant/convict, Hon'ble Supreme Court while acquitting appellants/convict for commission of offence punishable Under Sections 307/34 IPC by observing that the knife, mat having blood stains were not sent for FSL, in paragraph 19 of the judgment held as under:-
19. As pointed out by Mr. Ghosh, the manner in which the alleged incident is supposed to have taken place does not fit in with the injuries received by the complainant. The most glaring inconsistency is the story of the complainant's having held the blade of the knife, alleged to have been used in the commission of the offence, with both hands and thereby suffering incised injuries on his left palm. The injury report shows that the complainant did not have any incised injury or any other injury on his left palm and the injury to his right palm was not of an incised nature, but a bruise which could have been caused by a blunt instrument. Moreover, the knife, which was seized and was alleged to have been used for the commission of the offence, was never sent for forensic examination so as to connect it with the offence.
Furthermore, the other sharp-cutting implements, which were also seized, were also not sent for such examination. Even the mat which had blood stains on it was not sent for such examination and it could, therefore, not be proved as to whether the blood stains thereon were of human or animal origin. Coupled with the above is the fact that on going to the hospital in the night for medical treatment, the complainant did not even disclose to the doctor as to how he had sustained the injuries. The doctor was, therefore, not at all aware of any such incident, as presented by the prosecution, having been committed. Coupled with the above is the fact of the delay in lodging the FIR after consultation with the local villagers. Therefore, chances of fabrication in the FIR cannot be ruled out.
Ratio of the judgment (Supra) squarely applies to the facts of the case in hand. PWs 7&8 namely Gull Mohd and Mohd Sharief in their testimonies before the trial court have putforth evidence that the clothes of deceased were seized vide seizure memo EXPW-8/3. PW-13 HC Ram Raj (IHC/4) is the I/O of the case at the relevant time of occurrence of 27.03.2003 posted in Police Post Ramsoo (Ramban). In his deposition before the trial court I/O has categorically stated that he drafted the custody memo (EXT-PII) as well as fardsurathall (EXT-P1/1) of the dead body, took the photographs of the deceased marked as A, B,C and seized the clothes of the deceased vide seizure memo EXPW-8/3. I/O in his cross-examination has further stated that the gun used by the appellant was not seized in the case. On perusal of the photographs of the deceased Mark-A,B,C on the file, we clearly notice 21 CRA No. 9900003/2011 that the deceased's dead body is drenched in blood lying on the mat which is also blood stained. By the ratio of judgment (Supra) the legal position is no longer res-integra that if the seized weapon of offence alongwith blood stained clothes, mat and other material are not sent for ballistic expert or chemical examination no conviction can be sustained. In the case in hand, as the weapon of offence the alleged AK-47 Rifle, alongwith blood stained clothes of deceased, blood stained mat and other implements have not been sent for ballistic expert/chemical examination, therefore, the conviction of appellant in the case in hand cannot be sustained.
15. The 5th argument canvassed by Ld. Counsel for appellant/convict is, that as the name of assailant (appellant) is not mentioned in the FIR it also throws serious doubt on the credibility of the prosecution story, entitling acquittal of the appellant. In AIR 2013 SC 2354 [Khairuddin & Ors vs State Of West Bengal] relied by Ld. Counsel for appellant, Hon'ble Supreme Court while giving benefit of doubt to the appellants/convict and acquitting them from the charges u/ss 302/148/323/109 IPC in para 16 of the judgment held as under:-
16. It is evident from the above that the Appellant no.16- Monglu's presence on the spot and participation in the commission of the offence is proved by the evidence led by the prosecution and supported by his own statement recorded under Section 313 Cr.P.C. That is not, however, true about the remaining two appellants namely, Hafijuddin and Motilal who were neither named in the FIR nor is there any cogent evidence to suggest their complicity or participation in the commission of the offence. In the circumstances, therefore, while appeal filed by Monglu shall have to be dismissed, that filed by Hafijuddin and Motilal shall have to be allowed giving to the said two appellants also the benefit of doubt. Ratio of the judgment (Supra) squarely applies to the facts of the case in hand. In the FIR (EXPW-4/1) there is no mention of name of assailant (appellant). PW-4 Ghulam Qadir has lodged FIR (EXPW-4/1) and has admitted it's correctness. Contents of FIR depict that the name of appellant is not mentioned in it, but there is mention of unknown militant. PW-13 HC Ram Raj (IHC/4) I/O of the case has admitted in his cross-examination that FIR presented to him did not contain name of the appellant and moreso he has not got conducted the Test Identification Parade (TIP) of appellant to ascertain his involvement in the case in hand. In light of ratio of the judgment (Supra), as the name of appellant was neither named in FIR and there is no cogent evidence to suggest his complicity in the commission of 22 CRA No. 9900003/2011 crime, we impart the benefit of doubt to the appellant entitling him the acquittal in the case in hand.
16. The 6th argument portrayed by Ld. Counsel for appellant/convict is, that as the sole eye witness of the case (PW-3 Khurshid Ahmed is related to the deceased therefore principle of strict scrutiny has to be applied in the case in hand, but the trial court has committed a grave error of law in appreciating the principle of strict scrutiny and has rendered the impugned judgment and order against the established principles of law therefore liable to be set aside.
In AIR 2017 SC 2114 [Baliraj Singh vs State Of M.P] further relied by Ld. Counsel for appellant/convict, Hon'ble Supreme Court while acquitting the accused/appellant for commission of offence punishable under section 302/34 IPC held, that other than PW-12 family member of deceased the prime eye witness related to the deceased the prosecution has not made any independent witness from the village people who rushed to the place of offence alongwith PWs 8&9 on hearing hue and cry from the field, the courts below erred in not applying principle of strict scrutiny in assessing evidence of eye witness. Applying the ratio of the judgment (Supra) to the facts of the case in hand, we are of the firm opinion that PW-3 Khurshid Ahmed being the solitary eye witness of the case and deceased Zarina Banoo closely related to him as paternal mother (bua), the trial court has grossly erred in not applying the principle of strict scrutiny in assessing the evidence of PW-3 Khurshid Ahmed and relying upon his testimony.
17. We, on the basis of the aforesaid evidence, hold that there is no legal evidence on record to prove that appellant/convict is the mastermind of murder of deceased Zarina Banoo. The direct evidence/the circumstances as relied upon by the prosecution are not strong enough indicating the involvement of appellant/convict in the commission of crime and all the circumstances are not compatible with the possibility of guilt of appellant. The witnesses examined by the prosecution have not been able to putforth in their evidence a ring of truth so as to inspire confidence in this court. Evidence of prosecution witnesses, is therefore, qualitatively and quantitatively insufficient to bring nexus between appellant/convict and commission of the offences indicted against him. This renders the entire story of prosecution as incredible and unbelievable in the manner projected 23 CRA No. 9900003/2011 by the prosecution. On proper assessment, evaluation and estimation of the evidence adduced by the prosecution, the evidence appears to be weak, fragile, lacking in credibility, does not prove connecting link between the appellant and commission of offences. It would be highly dangerous and hazardous to hold the appellant/convict guilty of offences alleged against him on the basis of weak, shaky and unacceptable evidence. The whole case of the prosecution, therefore, becomes doubtful. The arguments tendered by Ld. AAG and the judgments relied upon by him, in view of the foregoing reasons and discussion, are legally unsustainable in the eyes of law.
18. For the foregoing reasons and discussion, we are of the considered view, that prosecution has miserably failed to prove the guilt of the appellant/convict beyond reasonable doubt for commission of offences U/Ss 302 RPC r/w 27(2) Arms Act. The Criminal Conviction Appeal, therefore, deserves to be allowed, the same is allowed, therefore, the impugned judgment of conviction and order of sentence dated 28.11.2011 & 29.11.2011 respectively rendered by the court of Ld. Principal Sessions Judge Ramban in file No. S.T. No. 07/2004 titled State Vs Abdul Waheed based on surmises, assumptions and presumptions being unsustainable in the eyes of law are set aside/quashed. Appellant/convict Abdul Waheed S/O Ahmadullah Naik R/O Thachi Tehsil Banihal District Ramban who is lying in judicial custody is, therefore, acquitted of the charges leveled against him for commission of offences U/Ss 302 RPC r/w 27 (2) Arms Act, and he shall be forthwith released from the custody if not required in any other case. Record of the trial court be sent back forthwith alongwith copy of the judgment for information of the trial court.
19. CRREF No. 18/2011 is answered accordingly.
20. Disposed of accordingly alongwith the criminal reference No. 18/2011 and connected CMPs (if any).
(Mohan Lal) (Vinod Chatterji Koul)
Srinagar Judge Judge
11.09.2023
Ayaz
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No