Jammu & Kashmir High Court - Srinagar Bench
Mushtaq Ahmad Malla vs Union Territory Of J&K & Ors on 10 March, 2023
Bench: Rajnesh Oswal, Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CrlA(D) No. 13/2022
CrlM No. 169/2022
CrlM No. 1528/2022
c/w
Crl Ref(L) No. 01/2022
Reserved on: 08.02.2023
Pronounced on:10.03.2023
Mushtaq Ahmad Malla
...Appellant
Through: Mr. G.A.Lone, Advocate with
Mr. Mujeeb Andrabi, Advocate.
Vs.
Union Territory of J&K & Ors.
...Respondents
Through: Mr. Alla ud din Ganai, AAG.
CORAM:
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
Per Oswal, J.
1. The court of Additional Sessions Judge Handwara (hereinafter referred to as 'trial court) has convicted the appellant for the commission of offences punishable under Sections 302, 201 RPC and 7/27 Arms Act in FIR No. 337/2005 of P/S Handwara vide judgment dated 31.12.2021 and sentenced him to imprisonment for life and a fine of Rs.50,000/- for the commission of offence punishable under Section 302 RPC, with further sentence of imprisonment for a term of seven years and a fine of Rs.10,000/-
Page |2 for the commission of offence punishable under Section 201 RPC, vide order dated 31.12.2021. In default of payment of fine in each case, the appellant has been ordered to undergo sentence for one year. Reference, in terms of Section 374 Cr.PC has also been made to this Court for confirmation of sentence of life imprisonment awarded to the appellant.
2. The judgment as well as the order of sentence has been assailed by the appellant on the ground that the learned trial court has not appreciated the evidence in its right perspective and has convicted the appellant without there being any incriminating evidence against him.
SUBMISSION OF APPELLANT :
3. Mr. Lone, learned counsel for the appellant, vehemently argued that the PW-1 Mohd. Ramzan War and PW-2 Jaan Mohd. are the interested and related witnesses, being the father-in-law and the brother-in-law of the deceased respectively, as such, their testimonies cannot be relied upon for convicting the appellant, particularly when their presence on spot was doubtful. He further argued that the statements of two witnesses namely PW-5 Jan Mohammad and PW-7 Abdul Ahad Lone were recorded by the Investigating Officer after many years of the occurrence and the delay has not been explained by the prosecution, which clearly shows that they were planted witnesses. It was also urged by Mr. Lone that the weapon of offence has not been recovered and the empty bullets castings recovered on spot were not sent to FSL for ballistic examination. Mr. Lone further argued that the evidence of the PW-1 Mohd. Ramzan War, that the deceased was shot at from Page |3 a close range, is contrary to the medical evidence, as the PW-8 Doctor Nazir Ahmed has categorically stated that there was no blackening of the skin around the wounds on the body of the deceased, which is necessary when the bullet is fired from a close range. It was also vehemently urged that no agricultural activity is undertaken in Kashmir during peak winters, as such PW-1 Mohd. Ramzan War has made wrong statement that he was planting and pruning the apple trees. In alternative, learned counsel for the appellant argued that in view of the statement of PW-8 Dr. Nazir Ahmad, the appellant can only be convicted for commission of offence punishable under Section 304-I or 304-II RPC. In nutshell, the contention raised by learned counsel for the appellant is that the learned trial court has not rightly appreciated the evidence and has ignored the material contradictions in the testimonies of PW-1 Mohd. Ramzan War, PW-5 Jaan Mohd. War and PW-7 Abdul Ahad Lone.
SUBMISSION OF RESPONDENT :
4. Per contra, Mr. Allaudin Ganai, learned AAG contended that the appellant is a dreaded militant, who was already involved in another case of murder and convicted by the court though subsequently was acquitted by the High Court in the said case. He further stated that the appellant was arrested on 27.08.2012 in the instant case and as the appellant was carrying out a reign of terror in the locality, so the witnesses made their statements during the investigation only when they came to know about the arrest of the appellant. He further contended that the recovery of weapon of offence is not pre-requisite for convicting the accused particularly Page |4 when there is direct evidence available on record in respect of killing of the deceased by the gunshots by the appellant. He also urged that the offence was committed in the winter season in Kashmir Valley and due to harsh winters, people generally wear multi-layered cloths, therefore, there was no blackening of the skin around the wounds on the body of the deceased. He also submitted that the activity of pollination for apple trees is undertaken in winter season only, as such there is no force in the contention of learned counsel for the appellant that no agricultural activity is undertaken in winters in Kashmir valley. PROSECUTION CASE :
5. The case projected by the prosecution is that on 22.12.2005, an information was received at the Police Station Handwara at 16.15 hrs., from the reliable source that two militants including one identified as Mushtaq Ahmad Malla S/o Ghulam Ahmad Malla R/o Shotgund, have killed one person namely Tariq Ahmad Malik S/o Abdul Qayoom Malik R/o Guloora by firing indiscriminately at Adoura and his dead-body is lying on the spot. On receipt of this information FIR No. 337/2005 was registered for the commission of offences under Sections 302 RPC and 7/27 Arms Act. The investigation was commenced. Investigating Officer (I.O) examined the place of occurrence and prepared the site-plan. He took the custody of the dead-body for the purpose of postmortem and prepared custody-memo. Eight empty bullet shells were also recovered on the spot and seizure-memo was also prepared. The postmortem of the dead-body was got conducted from the hospital at Handwara and the postmortem report was also Page |5 received. After the postmortem, the dead-body was handed over to the legal representatives of the deceased. The statement of the witnesses under Sections 161/162 Cr.P.C and 164-A Cr.P.C were recorded and during the investigation it was found that the appellant Mushtaq Ahmad Malla and Farooq Ahmad Chopan have committed the offence punishable under Sections 302 RPC and 7/27 Arms Act. Farooq Ahmad Chopan was later killed in an encounter in the year 2006 and his death-certificate was also obtained. The appellant was also found involved in FIR No.77/2006 under Sections 302 RPC and 7/27 Arms Act of Police Station Kralgund and was lodged in the Central Jail Srinagar in the said FIR. The custody of the appellant was obtained pursuant to the orders of Sessions Court Kupwara and the appellant was arrested on 27.08.2012. The recovery of the weapon used in the commission of the offence could not be affected, as the appellant did not provide any clue to the I.O, as a result of which the offence under Section 201 RPC was also added. After the conclusion of investigation, charge-sheet for the commission of offences punishable under Sections 302, 201 RPC and 7/27 Arms Act was laid against the appellant before the Chief Judicial Magistrate Handwara, which was committed to the court of Sessions Judge Kupwara, which was ultimately assigned to the trial court for disposal under law. The appellant was charged for the commission of offences under Sections 302, 201 RPC and 7/27 Arms Act by the learned Sessions Judge Kupwara vide order dated 24.07.2013. The prosecution had cited 15 witnesses out of which 14 witnesses were examined. The appellant also examined Page |6 04 witnesses in his defense. The learned trial court after hearing the prosecution and defense counsel, convicted the appellant for the commission of the above mentioned offences and sentenced him as above.
6. As this Court is dealing with the Conviction Appeal and various issues have been raised by the appellant during the course of arguments, as such, it is necessary for this Court to re-appreciate the evidence and for that purpose we deem it proper to have a brief resume of the relevant portions of the evidence led by the parties.
PROSECUTION EVIDENCE :
7. PW-1 Mohammad Ramzan War deposed that he knows the accused. The deceased Tariq Ahmed was his son-in-law, who was working in the Forest Protection Force and had come to his residence on 21.12.2005. On 22.12.2005, at around 3.00-3.15 PM while he was in his fields, some children were playing cricket. The deceased was watching the cricket-match and in the meanwhile, there was noise and commotion. Accused namely Mushtaq Ahmad Malla fired three shots upon the deceased; one shot hit the deceased at his neck below his right ear, 2 nd shot hit him at his knee and the 3rd shot hit at the arm of the deceased and the deceased fell down. The accused along with the gun, ran away from the spot and was accompanied by one more person. He informed the police on phone that the accused had killed the deceased by firing shots at him. Police came on the spot. He proved the FIR (EXPW-1). He further deposed that the dead body of the deceased was taken by the police for the purpose of post-
Page |7 mortem to Handwara. The police seized eight empty shells of bullets from the spot. He identified the shells in the court. After the post-mortem was conducted, the body of the deceased was handed over to him. He also admitted his statement recorded under Section 164-A Cr.P.C. He proved the seizure-memo of 8 shells of bullets (EXPW-1/2). The accused was without mask and was requested not to kill the deceased. Accused tried to bribe him for not making any statement against him. He asked the persons, who came on behalf of the accused, as to why the innocent person was killed by the accused but they did not reply and went away. During the cross-examination, he stated that he does not know the difference between AK-47 and AK-56. There is a distance of 15 yards between the place of occurrence and his field. The deceased was sitting at a distance of 20-25 steps away from the batsman. He was also sitting at the same distance from the batsman. He was pollinating and pruning the apple trees at that time. The accused had come to the deceased and the other person was covering the accused. He could not recognize the other person but there was a rumour that he was Fayaz. 10-30 persons were sitting on the spot. The accused caught hold of the deceased from his collar and thereafter fired upon him. He further stated in his cross- examination that the occurrence took place between 3.00 to 3.15 PM. This is not correct that the occurrence took place at 4.00 PM. His house is situated at the distance of 3 jaribs from the place of occurrence. The nearest hospital is situated at about ½ km away. This is not correct that he is a police informer. He does not know as to who was the batter. The children of the village were playing Page |8 but he does not remember them. The spectators included one Jan Mohammad War, Bilal Ahmad Malik, Afzal Lone, Abdul Ahad Lone and Abdul Rehman. Abdul Ahad Lone and Abdul Rehman are not related to him and they are residents of the other village. Abdul Rehman does not have land. He was cutting the branches of the apple trees. There is agricultural land around his field. Three persons were working in the agricultural field and they were Jan Mohammad, wife of the deceased and Mst. Zoona. Two persons had come on the spot and one had worn mask and a black 'pheran'. The accused had not worn mask. There was rumour that he was Fayaz Ahmad. One person was providing cover from the side of the field and the accused fired at the right leg of the deceased. The accused caught hold of the deceased by his collar, lifted and fired upon him. The deceased was sitting at that time. The first fire hit the deceased at his right leg, 2nd at his ear, but he does not know where the 3rd fire hit him, however, there was more firing also. The accused was Mushtaq Ahmad but he does not know whether he was having any other name or not. This is not correct that the deceased was called. He had heard the contents of (EXPW-1/2) and then signed. He had not enquired from the Investigating Officer about the meaning of AK-47. He cannot say as to what was the distance between the barrel of gun and the deceased but there was a distance of 2 feet between the accused and the deceased. He cannot say as to what was the distance between the deceased and the weapon. The accused aimed at the knee of the deceased at the time of firing i.e behind the knee. Only accused Mushtaq Ahmad had fired upon the deceased who fell Page |9 down on one side; thereafter both the accused fired in the air and ran away. As per his estimates, 10-12 bullets were fired. He had no concern with the accused persons. The people did not gather there but ran away due to the firing, whereas the well-wishers of the deceased remained on the spot and they included Jan Mohammad, Abdul Ahad Lone and Abdul Rehman. Abdul Rehman came on the spot at that time only and chased the accused Mushtaq Ahmad. This is not correct that Abdul Ahad was working in the field. He might have stated about the presence of his son in his statement before the Judge. He was read over the statement recorded under Section 164-A CrPC but the same is not mentioned. He did not carry the deceased to the hospital but the police had taken him. He further stated in his cross-examination that there was a distance of 2½ feet between the deceased and the barrel of the gun. There was a distance of 8 inches between the neck of the deceased and the gun. The blood had spilled on the spot. His son was on the spot; the wife of his brother-in-law and the mother of the deceased were crying. This is correct that he phoned the police between 3.00 to 3.15 PM. He called the police from his mobile phone. When he informed the police, the police came within 20-25 minutes. He does not know whether the police lifted the empty shells of the bullets from the spot or not. The deceased was lifted along-with his clothing but he does not know whether they were seized or not.
8. PW-2 Mushtaq Ahmad Mir did not support the prosecution, as he refused to recognize the accused, present in the court. He stated that when he reached on the spot, Army personnel were there and P a g e | 10 he heard that army had killed the deceased Tariq Ahmad. He was cross-examined by APP at length, but he could not elicit any incriminating material against the accused.
9. PW-3 Habibullah Peer stated that he does not recognize the accused, present in the court. Deceased Tariq Ahmad was known to him, who originally was the resident of Guloora. He was watching the children, who were playing. He heard the gun fire. Firing took place at a distance of 4 jarib from the land of Mohammad Ramzan. He got scared and the police also came on the spot. Police took the custody of the dead body and custody-memo was prepared. He signed the custody-memo (EXPW- 1/1) and proved the same. He did not hear as to who committed the incident. During cross-examination he stated that on the day of occurrence, he came to know that the deceased was 'khana-damad'.
10. PW-4 Mohammad Afzal Lone stated that he does not recognize the accused, present in the court. Deceased Tariq was known to him. He proved the custody-memo (EXPW-1/1) whereby the dead body of the deceased was taken into custody by the police and the receipt (EXPW-1/3) whereby the dead body was handed over to the family members of the deceased. He could not identify his signatures on the statement recorded by the Magistrate but admitted the contents thereof. During cross-examination, he stated that he had seen the accused first time in the court.
11. PW-5 Jan Mohammad stated that he knows the accused and the deceased was also known to him. The accused had killed the deceased. On 21.05.2005, the deceased had come along-with his mother as a guest and remained at his home for a night. That day P a g e | 11 he along-with the deceased proceeded from his home. When they reached the field, children were playing cricket. He along-with the deceased started watching the children play. The wife and the mother of the deceased were at some distance from the ground. While they were watching the match, the accused and one person came there. The accused is well known to him. The accused came near the deceased and called him. He asked for the reason for calling but the accused pushed him; thereafter the accused fired upon the deceased and the deceased fell down. The accused fired the first bullet at the right leg of the deceased; second bullet at his arm and the third bullet at the ear of the deceased; thereafter the accused ran away from the spot. The other accused could not be identified. Police came on the spot and seized the corpse. Police also seized the empty shells of the bullets from the spot. He made the statement before the police and his statement was also recorded before the Magistrate under Section 164-A CrPC. The police got the post-mortem conducted upon the body of the deceased. He knew the accused as he was a dreaded militant having gun in his hands. He used to have meals in his house. During the cross examination, he stated that he was present on the spot when the police reached there. He made the statement after the arrest of the accused. He expressed ignorance as to after how many years of the arrest of the accused, he made the statement. The accused used to come to his house often. The accused ran away after firing the gun shots. His father also watched the occurrence from some distance. He was not hit by any bullet. The occurrence took place in a span of 2-3 minutes. He does not P a g e | 12 remember as to what he stated before the police. He also does not remember the exact date of occurrence. He made his statement in the police post Langate and not in the police station Handwara. His signatures were not obtained when the empty shells of bullets were seized from the spot. This is wrong that the family of the accused was asking for establishing relations with his family. There was no personal enmity between the accused and the deceased. The accused never demanded any money and never asked for doing any wrong deeds. Number of people had gathered on the spot and he also cried. He could not notice as to who came on the spot but his sister and the mother of the deceased were present on spot. Shabir Ahmad Lone, Ab. Rehman, his sister and the mother of the deceased were along-with him at the police post Langate. Their statements were also recorded on that date at the police post Langate.
12. PW-6 Adbul Rehman Malik stated that he does not recognize the accused, present in the court and saw him for the first time in the court. He was declared hostile and cross-examined by APP. In cross-examination he stated that he was busy in his fields on the day of incident. Children were playing in the ground. At around 2 O'clock, firing took place which caused the panic and people started running. The assailants also ran away in the stampede. People were saying that Mushtaq had killed the deceased but he did not know him. He had signed the statement under section 162 Cr.P.C on the spot. During cross-examination by the defence counsel, he expressed ignorance about Mushtaq and stated that several people can have the name "Mushtaq".
P a g e | 13
13. PW-7 Adbul Ahad Lone stated that he knows the accused present in the court. He was a militant. He was working in his fields at Adoura. His younger brother Rashid Ahmad Lone was also with him. His brother told him that two persons armed with weapons had passed from there. His brother got frightened and requested him to proceed for home. Some children were playing cricket in the ground. He and his brother were standing there. The accused and the other militant reached near the children who were playing there. Deceased was also watching cricket. Brother-in-law of the deceased, relatives and children were also there. Accused caught the deceased and asked him that he wanted to talk to him. Brother- in-law of the deceased insisted that the accused should talk to the deceased there only. Deceased refused to accompany the accused and brother-in-law of the deceased also did not permit the deceased to accompany the accused. The other accused was sitting with a gun at the "Bund", when the deceased refused to accompany the accused, accused fired at the leg of the deceased as a result of which he fell down. The accused fired second shot below the ear of the deceased. The accused and his accomplice escaped from the spot after firing 8-10 bullets in the air. He was frightened after seeing the occurrence and remained at one place only. In the meanwhile, Tariq Ahmad Malik's mother, maternal aunt and wife of the deceased also arrived on the spot. He and his brother remained silent for 20 minutes without any movement. Someone informed the police and the police, STF, Army arrived on the spot. Police enquired from him and the children on the spot. But he was frightened and as such did not disclose the name of the P a g e | 14 accused. He was scared that the accused would kill him also because he was a militant. Police took the custody of the corpse as the deceased had died on spot. His statement was recorded before the Magistrate and he had made a similar statement before the Magistrate. He had also stated before the Magistrate that the Army personnel had gone to hillside, 20-25 minutes prior to the incident. As the incident is old so some variations may occur. He could not identify the other person accompanying the accused. Police had also seized the empty shells of the bullets from the spot in his presence. During cross-examination he stated that the occurrence took place at 2.45. He was serving as Plantation watcher on the day of incident and was posted at Adoora. He had not obtained leave from his office. He was on duty with VLW. VLW had proceeded for his home and had asked him to proceed for home. Police arrived at the spot after half an hour of occurrence. He did not remember whether his statement was recorded on that date as the occurrence is quite old. When the accused surrendered, thereafter he made a statement. He did not know whether the accused had been in police custody since 2006. He knew the accused as his sister was married in his village. The accused often used to come to visit his village and remain in the house of PW-1. This is wrong that the accused was falsely implicated in the case because the accused wanted to solemnize marriage with his daughter, which was not acceptable to him. The other person who was accompanying the accused was also often seen in the village and in the house of the PW-1. He did not know the name of the other person accompanying the accused. The accused present in P a g e | 15 the court fired upon the deceased. The accused and his associate instructed the deceased to accompany them but the deceased refused to do so, as such the accused fired upon him. The associate of the accused provided cover to him. The accused had instructed his associate to provide cover to him. This is wrong that the deceased was sitting at the time when he was fired upon but the fact is that the accused had instructed the deceased to stand up and thereafter fired upon him. Army personnel had not come at the spot and had not recorded his statement. Farooq Ahmad Chopan was not known to him. He did not sign any paper on spot. He had heard that Farooq Ahmad Chopan had died. He was not scared of Farooq Ahmad Chopan but of the accused. After about 1½ years of occurrence he came to know that the accused had surrendered and thereafter only he went to the police for recording his statement. His statement was recorded before the Magistrate at Handwara. His statement before the Magistrate was recorded after his statement was recorded under Sections 161/162 CrPC but he did not remember as to after how many days of the statement recorded before the police, his statement was recorded before the Magistrate under Section 164 CrPC. Had he known the name of the slain accused, he would have disclosed the same before the police. The slain accused was always wearing the mask, as such he was not able to recognize his face. This is wrong that the deceased was got killed by the Government agencies as his father- in-law used to provide space to the militants but the fact is that the accused only killed the deceased. This is wrong that the deceased was talking to his mother at the time of the occurrence. Only P a g e | 16 accused, present, in the court, fired bullets. He did not know as to whether the deceased militant had also fired or not. The deceased and Jan Mohammad were standing at the same place but the mother of the deceased was at the distance of 5-6 feet from them. There were 5-6 boys around the deceased. No one else was injured in the firing as the accused fired upon the deceased only. 10-15 bullets were fired on spot. Some shots were fired at the deceased and some in the air. He did not know as to when he made the statement before the police; perhaps that was made some 4-5 years back. The police had lifted the corpse and he had not lifted the same. It had been wrongly mentioned in his statement recorded under Section 164 CrPC that the corpse of the deceased was shifted to the village. The brother-in-law of the deceased had fainted at that time. The police had summoned him and was not read over his statement recorded under Section 162 CrPC.
14. PW-8 Dr. Nazir Ahmad stated that on 22.12.2006 he was posted as a Medical Officer in the District Hospital Handwara. One Tariq Ahmad Malik was brought by the police in the Handwara Hospital. On his examination, he found multiple bullet injuries on right cervical region, right thigh and right arm. The nature of the injuries was penetrated bullet injury; pupils were fully dilated; heart sounds S1 and S2 were not heard on examination. After thorough examination he was declared as brought dead. Accordingly, he issued a certificate on the injury memo which bears his signatures and is exhibited as Ext. PW-8. He also conducted the postmortem of the dead body and as per the postmortem report, cause of death of the deceased was found to be P a g e | 17 due to multiple bullet injuries which led to acute hemorrhagic shock and cardio-vascular arrest. He proved the postmortem report (Ext.PW-8/1). During the cross examination, he stated that the deceased was identified by local villagers and police personnel. He had mentioned in Ext.PW-8 that the body was brought by the local villagers but had not mentioned the entry and the exit of the bullets. The angle of the entry and exit of the bullet is not to be mentioned. He had only made mention of entry wound in Ext.PW-8 and had there been any exit wound, he would have definitely mentioned that. He had mentioned that the size of wound was 2 cms and the wound was penetrated. He found no black mark around the wound. While conducting postmortem of the dead body, no bullet was recovered. He found that large vessels were damaged, however, in Ext.PW-8/1, he had not mentioned about the damage of large vessels. He further stated in his cross-examination that had the deceased been fired from a nearer distance, the entry wound would have had the black mark around and also would have left the exit wound, so he came to the conclusion that the deceased could have received the bullets from a distance of more than 12 feet. In case, a person is fired from a distance of 12 feet it will leave a burn mark around the wound. It is correct that had the deceased been brought to the hospital in time, he would have survived. The deceased was brought to the hospital at about 3 PM but has not mentioned in Ext. PW-8.
15. PW-9 Farooq Ahmad stated that he does not know the accused. On 22.12.2005, information was received at Police station Handwara that two militants had killed one Tariq Ahmad S/o P a g e | 18 Abdul Qayoom at Adoura by firing bullets. One militant was identified as Mushtaq Ahmad Malla S/o Ghulam Ahmad Malla R/o Shotgund and the dead-body was lying on the spot. FIR No. 337/2005 under Section 302 RPC, 7/27 Arms Act was registered. He commenced the investigation. He reached on the spot and found the corpse on the spot, which was agricultural land. Dead body was drenched in blood. He prepared the site plan (Ext P-9). He seized eight empty shells of the bullets of AK-47 on the spot and prepared seizure memo Ext PW-½. He proved the custody memo EXPW-1/1. He also filled the injury form (Ext.P-8). Postmortem of the dead body was conducted. During investigation, he recorded the statement of four witnesses namely,
1) Mohd. Ramzan, 2) Mushtaq Ahmed Mir, 3) Pir Habibullah and
4) Mohd. Afzal Lone, under Section 161 Cr.P.C. He obtained the post-mortem report of the deceased and thereafter he was transferred on 07.03.2006. During investigation, offences under Sections 302 RPC and 7/27 Arms Act were established against the killers of the deceased. From the statements of all the four witnesses, whose statements were recorded by him, name of Mushtaq Ahmad Malla emerged as perpetrator of the offence. He did not arrest the accused. During cross-examination, he stated that the reliable source from whom information was received, had himself come to the police station. He can't disclose identity of the reliable source. He can't say whether the reliable source passed on the information to the SHO or 'Munshi' of the police station. Police station Handwara had received information at 4.15 PM in the day. People had gathered on the spot prior to the arrival P a g e | 19 of police. These four witnesses had identified the place of occurrence but he had not mentioned the same in their statements. He had sent the dead body for postmortem to Handwara at 5.30 PM. He had conducted the proceedings on the spot during daylight. He cannot say about the distance between the body of the deceased and empty shells of the bullets lying on the spot. He is not an ammunition expert. AK-47s are also available with the Army and with militants as well. The empty shells of the bullets lying on the spot could be of AK-56 gun also. He had not seen the empty shells of the bullets. He had prepared the case-diary only for three days. He had not got recorded the statement of any witness under section 164-A Cr.P.C as Cr.P.C was not amended at that time.
16. PW-10 Dy.SP Sayed Fayaz stated that he knows the accused present in the court. He was posted as SHO Handwara in the year 2006. He had conducted part investigation of the case. Investigation remained with him from 19.03.2006 till 04.02.2009. Only arrest of the accused was pending. His successors concluded the investigation and produced the charge sheet. Neither he recorded the statement of any witness nor prepared any document. He did not arrest the accused. Accused was associated with a militant organization. During cross- examination he stated that he did not produce the charge sheet as the accused was not arrested. He remained posted in Police station Handwara till the end of year 2008. The charge sheet against the accused titled State Vs. Shabir Ahmad Bhat & Ors. was filed in the court in the year 2008 because the accused was involved in one case of police station P a g e | 20 Kralgund. He did not apply for change of custody. He had raised the issue of arrest of the accused with security agencies as is mentioned in CD file. History sheet of the accused as an active militant was opened in police station Handwara.
17. PW-11 Bashir Ahmad stated that he does not know the accused. The occurrence is of the year 2005. He was In-charge Police Post Langate in the year 2011 and the investigation was handed over to him. He searched for the two accused. During investigation he came to know that the accused was detained pursuant to the detention order in FIR No. 27/2008 under Section 7/27 Arms Act. The accused was initially lodged at Kotbalwal Jail and thereafter at Baramulla. He had obtained lodgment certificate from Baramulla Jail. It also transpired that the other accused Farooq Ahmad Chopan had already died and he obtained his death certificate. He got the statements of the witnesses Mohammad Ramzan War and Mohammad Afzal Lone recorded under Section 164-A Cr.P.C before the CJM Handwara. Thereafter he was transferred from Police Post Langate. During cross-examination he stated that the investigation was handed over to him in the year 2011. The accused was free from the year 2005 till 2008 and was not arrested. He did not request the court for the custody of the accused. He was only instructed to get the lodgment certificate of the accused and not to conduct any further proceedings. The investigation was conducted under the supervision of senior officers. He had not got the statement of the wife and the brother- in-law of the deceased recorded u/s 164-A CrPC. He had conducted the investigation for nine months. He never went on the P a g e | 21 spot. He had conducted the investigation in the case only thrice during these nine months. He was transferred in the year 2012 but before his transfer, the investigation was handed over to ASI Mohammad Sultan. From the statements recorded u/s 164-A CrPC, the accused was found involved in the commission of offence. He had not got recorded the statement of any eyewitness to the occurrence because statements of some witnesses had already been recorded.
18. PW-12 Abdul Rashid stated that he does not know the accused. Occurrence took place in the year 2005. In the year 2012, he was posted as I/C Police Post Langate. Mohrir Chowki handed over the file to him and after perusal he found that the investigation was almost complete. He was about to retire. He handed over the file to ASI Mohd. Sultan and directed him to conclude the investigation. Offences under Sections 302 RPC, 7/27 Arms Act were found established against the accused. During cross- examination, he stated that his predecessor had completed the case-diary lastly on 03.11.2011. After eight months, he received the file and during those eight months, no-one had conducted the investigation. From the perusal of the case-diary, it was found that the accused was in detention in the year 2012 under PSA. This is evident from the entry dated 04.02.2011.
19. PW-13 I.O Mohammad Sultan deposed that he knows the accused, who has been exempted from personal appearance for today. He had conducted part investigation in the case. Investigation was handed over to him on 24.08.2012. Two accused were involved in the occurrence. Farooq Ahmad Chopan P a g e | 22 was a notorious militant who was killed in Kupwara. He had obtained the death certificate of the said militant. Accused was involved in FIR No.77/2006 of Police station Kralgund and in the year 2012, the accused was lodged in District Jail Kupwara. He had obtained the custody of the accused pursuant to the orders of Sessions Judge Kupwara in FIR no. 337/2005 Police station Handwara. Interrogation of the accused was conducted. He prepared the arrest-memo (EXPW-14) of the accused. The accused neither admitted the occurrence nor made disclosure statement before him but during the interrogation, he disclosed that the arms and ammunition were washed away with water and thereafter the offence under Section 201 RPC was added. He had recorded the statements of PW-Jan Mohammad, Abdul Rehman Malik and Abdul Ahad Lone; their statements were also got recorded before the Judicial Magistrate Handwara under Section 164-A Cr.P.C. He proved the offences against the accused under Sections 302, 201 RPC and 7/27 Arms Act. He conducted the investigation till 20.10.2012. When the investigation was handed over to him, the case-diary was prepared till 23.07.2012. Police Station Handwara was aware that the accused was involved in FIR No.77/2006 and was undergoing trial before the Sessions Court Kupwara. On 24.08.2012, he came to know that the accused was lodged in District Jail Kupwara. He was orally informed by SHO P/S Handwara that the accused was lodged in District Jail Kupwara, but he has not mentioned the same in the CD file. The statement of Jan Mohammad War was not recorded by his predecessor I.O. The Prosecuting officer had instructed him to get P a g e | 23 the statement of Jan Mohammad recorded under Section 164-A CrPC. This is correct that in order to strengthen the case, the statement of Jan Mohammad was got recorded u/s 164-A CrPC. He had mentioned in the daily-diary dated 01.09.2012 that the accused had disclosed that the fire-arms were washed away. As he had not recovered any weapon from the accused, so he cannot say as to whether the accused was having weapon on the date of occurrence or not. This is correct that as per the statement of the accused, the weapon and the ammunition was hidden in the jungle four years prior to the occurrence, which were washed away in the water.
20. PW-14 Shakeel Ahmad Bhat stated that the accused was known to him. In the year 2012, he was posted as SHO P/s Handwara. On 03.09.2012 ASI Mohd. Sultan produced the case-diary. For his satisfaction, he examined the file and came to the conclusion that the investigation was rightly conducted and the papers were also in order. He instructed the Investigating Officer to complete the formalities and produce the charge sheet before the court. Accused Mushtaq Ahmad Malla was found involved in the case and he had committed the offences punishable under Sections 302, 201 RPC and 7/25 Arms Act. During cross-examination, he stated that the accused was not arrested when he expressed his satisfaction with regard to the investigation. He had not enquired from the I.Os about the efforts made by them for arresting the accused. He had not conducted any investigation in the case; he had only expressed satisfaction about the investigation and several I.Os had investigated the case from time to time.
P a g e | 24 DEFENCE EVIDENCE:
21. DW Reyaz Ahmad Malla stated that the accused is known to him.
He had heard that Tariq Ahmad Malik was killed. He was building a cowshed at his home on the date of incident. Mohd. Shafi Bhat, Mushtaq Ahmad Malla and Mohd. Amin Malla were helping him. At 5.30 PM, he heard that the deceased was shot dead in the fields. Mushtaq Ahmad Malla was then helping him at his home. Rumor was circulated in the village that the Army had killed the deceased. It is wrong that the accused was involved in the incident as we were together for the whole day before and after the incident. During cross-examination, he stated that the accused was his brother. Guloora and Shotgund are two distant villages. He did not know the deceased. It is wrong that the accused was away from his home rather he was present at home.
22. DW Mohammad Shafi Bhat stated that the accused was known to him being a neighbour. He was present at home at the time of the incident and so was the accused. He was helping him in building the cowshed at his home. He remained busy with him for the whole day. In the evening they heard that the deceased was killed at Prungroo. Some people blamed that the Army had killed the deceased. During cross-examination, he stated that Adoura is about 5 kms away from his village. He can't say who killed the deceased. He had not heard the rumor that the accused had killed the deceased. After some 4 days of the incident, people started saying that the accused had killed the deceased.
23. DW-Javaid Ahmad Sheikh deposed that the accused was residing in the adjoining village. He was present at his home at the time of P a g e | 25 occurrence and heard that the people were blaming the Army for killing the deceased. After few days, he heard that the police had arrested the accused. The accused was present at home. During cross-examination, he stated that Prungroo is at a distance of some 2½ kms from Shotgund. Mushtaq Ahmad was a labourer. He cannot say who killed the deceased.
24. DW-Mehnaz Ahmad Ganai stated that the accused was known to him being a neighbor. The accused was present at his home on the date of occurrence. The accused was helping his father and brother in building a cowshed. He was a labourer and was hired by them and was paid Rs.170/-. At 5.15 PM, they heard someone had killed the deceased. He did not know as to who had killed him. The place of occurrence is at a distance of 8 kms from the village of the accused. During cross-examination he stated that he was of 12 years of age in the year 2005 and was an illiterate. His father was still alive. He was so young that he could not even lift a bag of 50 kg cement.
APPRECIATION :
25. The prosecution, in order to prove the charge against the accused-
appellant has relied upon the evidence of the three eyewitnesses namely PW-1 Mohd. Ramzan War, PW-5 Jaan Mohd. War and PW-7 Abdul Ahad Lone. PW-1 Mohd. Ramzan War, who is the father-in-law of the deceased, has categorically stated that on 22.12.2005 between 3.00 and 3.15 PM, when the deceased was watching the cricket match, the accused caught hold of the deceased by his collar who was sitting at that time, lifted him and fired three shots upon the deceased. One shot hit the deceased at P a g e | 26 his neck below his right ear, 2nd shot hit him at his knee and 3rd shot hit at his arm and the deceased fell down. The appellant- accused, who was armed with a gun, ran away from the spot along
-with his associate. He also deposed about the seizure of the 08 empty shells of the bullets from the spot and identified the same in the court. PW-5 Jaan Mohd War, who is the son of PW-1 Mohd. Ramzan War and the brother-in-law of the deceased stated that the deceased along with his mother had come to his home as a guest for a night. He along with the deceased proceeded from his home and when they reached the field, children were playing cricket. While they were watching the match, the accused-appellant along with one person arrived there. The appellant-accused came near the deceased and called him. He asked the reason for calling but the appellant-accused pushed him and thereafter fired upon the deceased and the deceased fell down. He has also narrated the manner in which the appellant-accused fired upon the deceased as the appellant-accused fired 1st bullet at the right leg of the deceased, 2nd bullet at his arm and 3rd bullet at his ear. Thereafter the accused ran away from the place of occurrence and the other accused could not be identified. PW-7 Abdul Ahad Lone has also described in detail the manner, in which the deceased was killed by the accused. He stated that his brother insisted him to go home as the two armed persons had passed from there, while he was working in the fields at Adoura. The deceased was watching cricket and his brother-in-law, relatives and children were also there. Appellant caught the deceased and asked him that he wanted to talk to him. Brother-in-law of the deceased insisted that P a g e | 27 he should talk to the deceased there only and when the deceased refused to accompany the appellant, the appellant fired at the leg of the deceased as a result of which he fell down, the appellant fired 2nd shot below the ear of the deceased. The other accused was sitting with the gun at the "Bund" and after firing shots in the air, the appellant and his accomplice escaped from the spot. All these 03 witnesses have stated in consistent manner that it was the appellant only who fired at the deceased and the associate of the accused (now deceased) accompanied him.
26. Learned counsel for the appellant by placing reliance upon the statement of PW-9 Farooq Ahmed (I.O) submitted that when PW- 9 Farooq Ahmed (I.O) arrived at the place of occurrence, the statements of four witnesses namely Mohd. Ramzan, Mushtaq Ahmed Mir, Pir Habibullah and Mohd Afzal Lone were recorded on spot and except Mohd. Ramzan, no witness has deposed about the commission of offence by the appellant during their depositions in the court. He further submitted that PW-2 Mushtaq Ahmed Mir and PW-4 Mohd. Afzal Lone were declared hostile by the prosecution and even during cross-examination, no incriminating material could be extracted against the appellant. Learned counsel for the appellant tried to discredit PW-1 Mohd. Ramzan War by raising an argument that in the winter season, no pruning, grafting or any kind of agricultural or horticultural activity is undertaken in Kashmir and this argument has been raised by the appellant to dispute the presence of the said witness in his fields due to the reason that this witness in his cross- examination stated that he was pollinating and pruning the apple P a g e | 28 trees at that time. The said witness was never cross-examined by the appellant with regard to this fact and even no suggestion was made to the witness during cross-examination and in fact, no evidence has been led by the appellant to prove the said fact, as such his testimony with regard to that fact is required to be believed and more particularly, when this argument of learned counsel for the appellant was seriously objected by Mr. Ganai, learned AAG that that pollination work in respect of apple trees is generally undertaken in the month of December. Learned counsel for the appellant also tried to persuade this Court that there are material contradictions between the testimonies of PW-1 Mohd. Ramzan War and PW-8 Dr. Nazir Ahmed, therefore the evidence of PW-1 Mohd. Ramzan War is required to be discarded. PW-1 Mohd. Ramzan War has stated that the gun shots were fired from a distance of 2 feet from the deceased and there was a distance of 8 inches between the gun and the neck of the deceased whereas PW-8 Dr. Nazir Ahmed has stated that the deceased must have received the bullets from a distance of more than 12 feet and had the deceased been fired upon from short distance, then there would have been black/burn marks around the wounds. The perusal of statement of PW-8 Dr. Nazir Ahmed reveals that he, in un-ambiguous words, has stated that there were bullet injuries on the body of the deceased and to the same extent the PW-1 Mohd. Ramzan War has stated. The multi-layered clothes worn in the peak winter season in Kashmir may have been the factor for absence of smudge/blackening of skin as the offence was committed when there was peak winter in Kashmir. Otherwise P a g e | 29 also there is no hard and fast rule that the scorching and blackening of skin is conclusive proof of distance of firing. In State of U.P. v. Sughar Singh, (1978) 1 SCC 178, the Hon'ble Apex Court observed as under:
" In view of such direct evidence of eye-witnesses of the firing being available on record some inconsistency relating to distance from which gun shots were fired between the evidence of medical expert and the eye- witnesses would be of no significance whatsoever".
27. In Hori Lal v. State of U.P., (2006) 13 SCC 79, after taking note of the observations and findings of Experts on the subject, Apex Court has held as under:
"27. ----- In Modi's Medical Jurisprudence and Toxicology, 23rd Edn. at p. 721, it is stated:
"If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo around the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue no distinction can be made between one distant shot and another, as far as distance is concerned. Scorching in the case of the latter firearms is observed within a few inches, while some evidence of scorching in the case of shotguns may be found even at one to three ft. Moreover, these signs may be absent when the weapon is pressed tightly against the skin of the body, as the gases of the explosion and the flame smoke and particles of gunpowder will all follow the track of the bullet in the body. Wetting of the skin or clothes by rain reduces the scorching range. Blackening is not affected by wet surface although it can easily be removed by a wet cloth. Blackening with a high power rifle can occur up to about one ft. Usually if there are unburnt powder grains, the indication is that the shot was fired from a revolver or a pistol and shorter the barrel of the weapon used the greater will be the tendency to the presence of unburnt or slightly burnt powder grains."
P a g e | 30
28. In Major Sir Gerald Burrard's The Identification of Firearms and Forensic Ballistics, at p. 59, it is stated:
"Both scorching and blackening prove definitely that the shot was fired from very close quarters, in which case an assertion by the suspected person that the deceased fired the shot himself, cannot be disproved if the weapon used was a pistol or revolver. But if it is possible to establish that the range of the shot must have been greater than the length of the deceased's arm the matter assumes a somewhat different complexion, and the evidence may be of great use in bringing a murderer to book.
The extreme limit of the blackening range is well within any normal person's arm's length, and so the absence of blackening is no proof that the shot was fired from sufficiently far away to have made it impossible for the deceased to have been clutching either the weapon, or the individual who is suspected of having held the weapon. However, the presence or absence of unburnt or partially burnt powder grains may indicate a range which is either just within or just without this critical distance; and on this account the investigation into the question of unburnt powder grains may become a matter of primary importance."
29. However, no hard-and-fast rule can be laid down therefor.
30. In Russell A. Gregory's Identification of Disputed Documents, Fingerprints and Ballistics, 3rd Edn., at p. 117, it is stated:
"The distance from which a firearm was discharged can be judged to a limited extent. If black powder has been used the distribution of the tattoo marks made by the powder, round about the wound will give some indication as to the distance of the weapon from the wound. This will vary according to the calibre of the weapon and the make of the cartridge. If any empty cartridges have been found on the scene of the crime, similar cartridges should be tested in the suspect weapon and the distance judged by the dispersion of the pellets or distribution of unburnt powder marks. Black powder however is now rarely used in cartridges. Modern smokeless powder leaves little markings of burnt powder beyond eight to ten inches. Within this distance small particles of unburnt powder may be found entangled in the clothing or at the wound of entry. These may be of evidential value if they correspond to the powder in the ammunition found in the possession of the accused."
(Emphasis Supplied)
28. In "Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala", 2021 SCC OnLine SC 493, the Apex Court has held that ocular evidence is considered the best evidence unless there are reasons P a g e | 31 to doubt it and it is only in a case where there is a gross contradiction between medical evidence and oral evidence and the medical evidence makes the ocular testimony improbable and rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. In Karnail Singh v. State of Punjab, (1971) 3 SCC 616, the Apex Court refused to place reliance upon the medical evidence, in view of direct evidence available on record.
29. In the present case, the affected area of the body of the deceased has not been photographed by infra-red light and also as the weapon used is 'Kalashnikov', so no reliance can be placed upon the particular part of statement of the Doctor that the deceased must have been fired upon from a distance of more than 12 feet. It is not that PW-1 Mohd. Ramzan War was a chance-witness and he could not have been present near the place of occurrence. It needs to be noted that he was present in his fields and the same was adjacent to the place of occurrence, as is established by the site plan (Ext P-9) prepared by I.O. He has given the exact description of the injuries on the body of the deceased duly corroborated by PW-8 Dr. Nazir Ahmed. This discrepancy is not of such a nature so as to negate the testimony of PW-1 Mohd. Ramzan War.
30. It was also argued that all the three witnesses have not deposed in the uniform manner regarding the firing by the appellant, as such their statements cannot be relied upon for convicting the appellant. Needless to say that minor contradictions are bound to occur in the statements of the eye-witnesses and in the instant case, the statements were made by the witnesses after more than 5-6 years P a g e | 32 of the occurrence, so with passage of time the witnesses may not remember the minute details of the occurrence. It would also be profitable to take note of the principles laid down by Apex Court while evaluating the ocular evidence in Shahaja v. State of Maharashtra, 2022 SCC OnLine SC 88, which are as under:
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
P a g e | 33 VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts P a g e | 34 forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
31. It was also contended by the appellant that PW-5 Jaan Mohd War and PW-7 Abdul Ahad Lone were planted witnesses as their statements were recorded after more than 6 years of the alleged occurrence and no explanation is forthcoming from the prosecution for explaining the said delay. The perusal of the record reveals that the statements of these 02 witnesses were recorded under section 164-A Cr.P.C in the month of October/November 2012 whereas the occurrence took place on 22.12.2005. PW-7 Abdul Ahad Lone has stated that he was frightened after the occurrence and remained stationary and motionless at the same place for about 20 minutes. He further stated that he was frightened and did not disclose the name of the appellant to the police as he was scared that the appellant would kill him also because he was a militant. He made his statement only, after the appellant surrendered. He did not know whether the appellant had been in police custody since 2006. An endeavour was made by the learned counsel for the appellant to convince this court to reject the testimony of the said witness by referring the cross-examination of the said witness wherein he stated that after about 1 ½ years of occurrence, he came to know that the accused had surrendered and thereafter only he went to the police for recording his statement. The appellant cannot derive any advantage by picking up a particular sentence from the statement of the witness, as the whole statement is required to be considered for the purpose of appreciating the evidence of the witness. PW-7 P a g e | 35 Abdul Ahad Lone has stated that he made the statement only after the accused surrendered and he was not aware whether the accused had been in custody of the police since 2006. It needs to be noted that the accused was arrested in this case on 27.08.2012, as is evident from the memo of arrest and the statement of this witness recorded in the month of November 2012. It is established from the evidence of PW-10 Dy.S.P Sayed Fayaz that the accused was an active militant and his history sheet was opened in the Police Station Handwara. The accused was also involved in another FIR No. 77/2006 of P/S Kralgund for the commission of offences under sections 302 RPC and 7/27 Arms Act and he was convicted along with other accused by the trial court, to be acquitted subsequently by this Court. This is an established fact that the appellant is a dreaded militant and the delay in recording the statement of this witness during the course of investigation is fully justified in the present facts and circumstances of the case. So far as PW-5 Jaan Mohd is concerned, he too has stated that the appellant was a dreaded militant, was having a gun in his hands and he made the statement after the arrest of the appellant. PW-5 Jaan Mohd is not a chance witness and his presence on the spot cannot be doubted as he stated that the deceased along with his mother had come to their house as a guest and remained with them for a night. The prosecution has successfully proved that the accused is a dreaded militant and the witnesses had every reason to apprehend threat to their lives at the hands of the appellant. Further, the FIR was lodged with promptitude as the occurrence took place between 3.00 PM and 3.15 PM on 22.12.2005 whereas P a g e | 36 the FIR was registered on the same day at 4.15 PM and the appellant was named as an accused in the FIR. In the militancy related cases, the witnesses rarely come forward to assist the Investigating Agencies because of threat to their life. The delay in recording the statements of the witnesses during the investigation would have been fatal, had there been no explanation for the delay and the witnesses being suddenly associated with the investigation without there being any reason for their presence on the spot. Simultaneously, the fact that the appellant was named in the FIR, cannot be ignored as well.
32. In Krishna Mochi v. State of Bihar, (2002) 6 SCC 81, the Apex Court has taken note of several reasons for the witnesses turning hostile and one of the reasons for turning hostile is threat and terror of the accused. The same reasons may hold good for not deposing against the accused during the investigation, when the accused is at large. The reasons enumerated by the Apex Court have been mentioned in Para-31 of the said judgment and the same is reproduced as under:
"31. It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross- examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. These days it is not difficult to gain P a g e | 37 over a witness by money power or giving him any other allurance or giving out threats to his life and/or property at the instance of persons, in/or close to powers and musclemen or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time."
33. In Goutam Joardar v. State of W.B., 2021 SCC OnLine SC 910, the Apex Court has held as under:
"11. The material on record definitely establishes the fear created by the accused. If the witnesses felt terrorised and frightened and did not come forward for some time, the delay in recording their statements stood adequately explained. Nothing has been brought on record to suggest that during the interregnum, the witnesses were carrying on their ordinary pursuits."
34. In the instant case, the witnesses have themselves furnished the reasons for not making the statement against the appellant till his arrest, that he was a militant. More-so, as already observed the appellant was named in the FIR and it is not that the culprit of offence was not known and after recording the statements of these two witnesses, the appellant was roped in as accused in the case.
35. The appellant also raised the issue that the statements of PW-1 Mohd Ramzan War and PW-5 Jaan Mohd., cannot be relied upon as they are the related and interested witnesses. We have examined the statements of these two witnesses critically as well as cautiously and we find no reason to disbelieve them. Witness being related or interested can hardly be a ground to reject his testimony, only requirement is that the evidence of such witness is required to be appreciated with due care and caution. In Md P a g e | 38 Jabbar Ali & Ors versus State of Assam reported in MANU/SC/1351/2022, it has been held as under:
"48. It is noted that great weight has been attached to the testimonies of the witnesses in the instant case. Having regard to the aforesaid fact that this Court has examined the credibility of the witnesses to rule out any tainted evidence given in the court of Law. It was contended by learned counsel for the appellant that the prosecution failed to examine any independent witnesses in the present case and that the witnesses were related to each other. This Court in a number of cases has had the opportunity to consider the said aspect of related/interested/partisan witnesses and the credibility of such witnesses. This Court is conscious of the well-settled principle that just because the witnesses are related/interested/partisan witnesses, their testimonies cannot be disregarded, however, it is also true that when the witnesses are related/interested, their testimonies have to be scrutinized with greater care and circumspection. In the case of Gangadhar Behera and Ors. v. State of Orissa (2002) 8 SCC 381, this Court held that the testimony of such related witnesses should be analysed with caution for its credibility."
36. Further, in "Rajesh Yadav & Anr. Versus State of U.P", 2022 SCC OnLine SC 150, the Apex Court has been held as under:
"28. A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose."
37. The learned counsel for the appellant also stressed that the appellant cannot be convicted as the weapon used in the alleged commission of offence has not been recovered from the appellant. From the evidence of the eye-witnesses, as discussed above, it is clear that the appellant killed the deceased by firing three shots upon the deceased. As per the seizure memo (Ex PW- ½) eight empty shells of the bullets of AK-47 were recovered from the spot P a g e | 39 on 22.12.2005. The seizure memo of the empty shells, eight in number, stands proved by the prosecution by examining PW-1 Mohd. Ramzan War and PW-9 Farooq Ahmed Bhat (I.O). PW- 14 Mohd. Sultan has stated that he obtained the custody of the appellant pursuant to the orders of the learned Sessions Judge Kupwara and arrested the appellant vide Arrest Memo dated 27.08.2012 (Ext. P-14). He also stated that the appellant had disclosed that arms and ammunition were washed away in water, therefore, he added an offence under Section 201 RPC. The learned counsel for the appellant also tried to persuade this Court that the whole story of the prosecution in respect of the failure to recover arms is concocted as PW-14 Mohd. Sultan has stated that the accused divulged that he had hidden firearms in the forest four years before the occurrence and the water washed them away. This part of the statement does not make any sense and leads us nowhere. Otherwise also, as already observed the whole statement of the witness is required to be considered and not one isolated sentence, that too does not make any sense. The appellant had killed the deceased with gun-shots and had fled away along with the gun. He was arrested after quite a long time of occurrence and he might have destroyed the weapon so as to get the benefit of non-recovery of weapon. It is advantageous to take note of the observations made by the Hon'ble Apex Court in "Krishna Gope v. State of Bihar", (2003)10 SCC 45, which are quoted hereunder:
"8. Learned counsel further pointed out that the country- made firearm alleged to have been used by the appellant was not recovered by the police and the same was not sent to the police station. The learned counsel submitted that the investigation was not properly done and that the appellant is P a g e | 40 entitled to the benefit of doubt. In our view, this plea is not tenable. The house of the appellant was searched immediately after the incident, but the police could not recover the weapon of offence from his house. It appears that the appellant had succeeded in concealing the weapon before the police could search his house. In our opinion, the fact of non-recovery of the weapon from the house of the appellant does not enure to his benefit."
(Emphasis Supplied)
38. In "State through the Inspector of Police Versus Laly @ Manikandan & Another Etc." 2022 SCC OnLine SC 1424, the Apex Court has held as under:
"7. The submission on behalf of the accused that as the original informant - Mahendran has not been examined and that the other independent witnesses have not been examined and that the recovery of the weapon has not been proved and that there is a serious doubt about the timing and place of the incident, the accused are to be acquitted cannot be accepted. Merely because the original complainant is not examined cannot be a ground to discard the deposition of PW1. As observed hereinabove, PW1 is the eye witness to the occurrence at both 9 the places. Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye witness."
(Emphasis Supplied)
39. In view of the above referred judgments and the direct evidence available on record, the appellant is not entitled to any benefit in respect of non-recovery of weapon of offence.
40. It was also urged that the recovered empty shells of the bullets were not sent for ballistic examination and it further causes dent in the prosecution case. Though PW-1 Mohd. Ramzan War has stated that he does not know the difference between AK-47 and AK-56 and PW-9 Farooq Baht has also stated that the empty P a g e | 41 shells of the bullets may be of AK-56, but it would not make any difference as there is direct evidence with regard to the use of gun for the commission of offence duly corroborated by the postmortem report (EXT. Pw-8/1). There is no universal rule that in all cases ballistic expert is required to be examined where the lethal weapon of offence has been used in the commission of crime as held by the Apex Court in "Gulab v. State of U.P., 2021 SCC OnLine SC 1211". The relevant portion of the judgment is extracted below:
"21. However, a three-judge Bench of this Court, in Gurucharan Singh v. State of Punjab , has analysed the precedents of this Court and held that examination of a ballistic expert is not an inflexible rule in every case involving use of a lethal weapon. Speaking through Justice P B Gajendragadkar (as the learned Chief Justice then was), this Court held:
"41. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this Court in Mohinder Singh v. State [1950 SCC 673]. In that case, this Court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down P a g e | 42 an inflexible Rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr. Purushottam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence."
22. Similarly, a two-judge Bench of this Court in State of Punjab v. Jugraj Singh had noticed that surrounding circumstances in the prosecution case are sufficient to prove a death caused by a lethal weapon, without a ballistic examination of the recovered weapon. The Court, speaking through Justice R P Sethi, had noted:
"18. In the instant case the investigating officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served by sending the same to the ballistic expert for his opinion. No further question was put to the investigating officer in cross-examination to find out whether despite the guns being defective the fire pin was in order or not. In the presence of convincing evidence of two eyewitnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any way, affected the creditworthiness of the version put forth by the eyewitnesses."
23. The present case is not one where despite the recovery of a firearm, or of the cartridge, the prosecution had failed to produce a report of the ballistic expert. Therefore, the failure to produce a report by a ballistic expert who can testify to the fatal injuries being caused by a particular P a g e | 43 weapon is not sufficient to impeach the credible evidence of the direct eye-witnesses."
(Emphasis Supplied)
41. It was contended by the learned counsel for the appellant that the investigation was defective as the I.O did not seize the blood- stained clay, clothes of the deceased, send the empty shells of the bullets for ballistic examination and arrested the appellant after a long time of his arrest in the other FIR of Police Station Kralgund, so the appellant is entitled to benefit of doubt. After scanning the record, this Court finds that the investigation has not been conducted in proper manner. This is true that the Investigating Officer has not seized the blood-stained clay, blood-stained clothes. The investigation of any offence is required to be conducted in a proper and fair manner, swiftly, so that the vital evidence may not get destroyed and also that the accused may not be able to get any advantage of the indolence of the Investigating Officers. From the statement of PW-10 Syed Fayaz, it is evident that in the year 2008 itself, he was aware that appellant was arrested in the other case but despite that he did not take any step for arresting the appellant in the instant case. Had the appellant been arrested in the instant case in the year 2008 itself, the witnesses who did not make statement immediately after the occurrence during the investigation because of the apprehension of threat to their life at the hands of appellant, would have come forward to make a statement against the appellant and in that case the appellant would not have been able to raise the issue of defective investigation. We fail to understand as to whether this P a g e | 44 act was deliberate act on the part of Investigating Officers or was their indolence that the appellant was not immediately arrested in this case when he was arrested in the other FIR of Police Station Kralgund. Be that as it may, the accused cannot take the benefit of laziness of the Investigating Agencies. In C. Muniappan v. State of T.N., (2010) 9 SCC 567, the Apex Court has held as under:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
42. In Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654, the Supreme court has held as under:
"54. The question, however, is whether the failure of the investigating agency to make a reference would in the circumstances of the case discredit either the version of the witnesses that the T-shirt was bloodstained when it was seized or constitute a deficiency of the kind that would affect the prosecution version. Our answer is in the negative. Failure to make a reference to forensic science laboratory is in the circumstances of the case no more than a deficiency in the investigation of the case. Any such deficiency does not necessarily lead to the conclusion that the prosecution case is totally unworthy of credit. Deficiencies in investigation by way of omissions and lapses on the part of investigating agency cannot in themselves justify a total rejection of the prosecution case.
59. In the light of the above the failure on the part of the investigating officer in sending the bloodstained clothes to the FSL and the empty cartridges to the ballistic expert would not be sufficient to reject the version given by the P a g e | 45 eyewitnesses. That is especially so when a reference to the ballistic expert would not have had much relevance since the weapon from which the bullets were fired had not been recovered from the accused and was not, therefore, available for comparison by the expert."
(Emphasis Supplied)
43. We have also examined the evidence in defense led by the appellant. The appellant, besides examining his brother, has also examined 03 other witnesses and the perusal of their statements reveals that the appellant was present in his home and was assisting his brother in constructing a cowshed. The evidence in defense led by the appellant does not inspire confidence in view of the cogent and clear evidence led by the prosecution establishing the commission of offence by the appellant, as such, no reliance can be placed upon the defense evidence led by the appellant.
44.The learned counsel in the alternative had submitted that in view of the statement of PW-8 Dr. Nazir Ahmed that the deceased would have survived, had he been brought to the hospital in time, the appellant was required to be convicted under Section 304-I or 304-II RPC. This submission has been taken note of for rejection only in view of the fact that the deceased had died on spot. The appellant fired at the right leg and right arm to incapacitate the deceased to run away or defend himself and also shot him at his neck. The appellant had clear intention to kill the deceased that manifested in his actions, as such, the appellant cannot be convicted under Section 304-I or 304-II RPC but only under Section 302 RPC.
45. We have examined the judgment passed by the learned trial court. Learned trial court has considered all the issues raised by the P a g e | 46 accused-appellant before the trial court and each issue has been dealt with by the learned trial court in accordance with law by placing reliance on various pronouncements of the Hon'ble Apex Court. Learned trial court though has convicted the appellant for the commission of offence punishable under Section 7/27 of Arms Act but has rightly not sentenced him for the punishment prescribed under Sub Section 3 of Section 27 of Arms Act because the Hon'ble Apex Court has declared the Sub section 3 of Section 27 of Arms Act as unconstitutional in a case titled State of Punjab Vs. Dalbir Singh 2012(3) SCC 346, as the said Section provides for the punishment of death penalty only. Learned trial court has after holding the appellant guilty for the commission of offence punishable under Section 302 RPC sentenced him to undergo imprisonment for life and we do not find that the sentence of life imprisonment awarded to the appellant is disproportionate to the offence committed by him, particularly when Section 302 RPC provides punishment of either death penalty or imprisonment for life. We also find that the learned trial court has rightly convicted the appellant for the commission of offence under Section 201 RPC particularly when there was direct evidence regarding killing of the deceased by the appellant by gun and subsequently running away of the appellant from the place of occurrence with gun.
46. In view of the above, we do not find any illegality or infirmity in the judgment of conviction and order of sentence dated 31.12.2021 passed by the learned trial court in CNR No. JKKW040000022012 titled State Vs. Mushtaq Ahmad Malla & P a g e | 47 Anr., in FIR No.337 of 2005 of P/S Handwara for commission of offence punishable under Section 302, 201 RPC and Section 7/27 of Arms Act, as such, the same are upheld. Appeal is found to be without any merit, therefore, is, dismissed.
47. Reference is answered accordingly.
48. Record of the learned trial court is directed to be sent back.
(MOHAN LAL) (RAJNESH OSWAL)
JUDGE JUDGE
Srinagar
10.03.2023
Muzammil. Q
Whether the order is reportable: Yes