State Of J&K vs Bansi Lal
2022 Latest Caselaw 1402 j&K

                                                                 S. No. 28
             HIGH COURT OF JAMMU AND KASHMIR & LADAKH
                           AT JAMMU

                                              CRAA No. 9900005/2013


                                              Reserved on: 27.09.2022
                                              Pronounced on: 07.10.2022


State of J&K                                                   ...Appellant(s)


                 Through :- Mr. Eishaan Dadhichi, GA
                v/s

Bansi Lal                                                   .....Respondent (s)

                 Through :- Mr. A. K. Shan, Advocate


Coram:       HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
             HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE


                                  JUDGMENT

Per Rajesh Sekhri-J

1. Challenge in this Acquittal Appeal has been thrown to the judgment dated

18.10.2012 passed by the learned Principal Sessions Judge, Kishtwar (hereinafter

referred to as 'trial court') in File No. 13/Sessions vide FIR No. 88/2002 of Police

Station Kishtwar for offence under Section 302 of the Ranbir Penal Code, 1989

(RPC for short), vide which respondent has been acquitted of the charges.

2. Shorn of verbosity, the prosecution case is that on 17.06.2002 ASI Jagdish

Raj, Officer Incharge of Police Post Shalimar, who had been deputed with

pilgrimage of Sader Mata, reported back in the Police Station, Kishtwar that

during the pilgrimage duty, when he along with STF and VDC were returning

from Shandri and reached at Hing Dhar Kuntwara, some un-known militants

resorted to indiscriminate firing, which was retaliated by the police party and

during the cross firing two VDC members and two civilians were killed on the

spot and when they reached at Akra, they found dead body of Ahmed Ullah s/o

Abdul Gani Butt R/o Nag Bhatna, an employee of PHE, who was shot dead by

SPO Bansi Lal No.20606 with service SLR.

3. On receipt of this report, FIR came to be registered for offences under

Sections 302 of the Ranbir Penal Code, 1989 (RPC for short) and 7/27 of the

Arms Act (A. Act for short) and investigation came to be vogue. During

investigation, the investigating agency took the dead body in its custody, got

postmortem conducted, seized clothes of the deceased, arrested the accused,

recovered and seized one SLR rifle along with magazines from the

respondent/accused. The weapon of offence was sealed and sent for chemical

examination to FSL. The reports of FSL and the postmortem were obtained,

statements of the witnesses were recorded u/s 161 Cr.P.C.

4. It surfaced during investigation that on 14.06.2002 the pilgrimage

commenced from Bhandera to Shandri temple and accused was deputed with the

pilgrimage by Incharge STF Post Bhatkoot and the accused had been directed to

report back after the pilgrimage. That on 15.06.2002, on the culmination of the

pilgrimage from Shandri to Bhandera, the STF personnel went back to Bhatkoot

Camp, but accused accompanied the pilgrimage to Bhandera without permission

and when they reached Hing Dhar, militants blasted an IED planted by them and

opened indiscriminate firing, which was retaliated by the police party and

militants succeeded to fled away. Three pilgrims and two VDC members died in

the firing of the militants. Accused ran from the spot firing with his official SLR

and on reaching at Akra village at a distance of about 6 kms, he shot Ahmed

Ullah Butt a PHE employee dead, who was there on his duty. It has been alleged

that the deceased was known to accused and the accused had intentionally shot

him dead. On the completion of the investigation, final report in terms of Section

173 Cr.P.C was laid in the court of learned JMIC, Kishtwar, wherefrom the same

was committed to the trial court.

5. The respondent was charged by the trial court for offence u/s 302 RPC,

whereby he pleaded innocence and claimed trial and as a consequence whereof

the prosecution was directed to adduce evidence in support of the charge. On

closure of the prosecution evidence, the respondent was examined u/s 342 of the

Code of Criminal Procedure, 1989 (Cr.P.C for short), who denied the

incriminating evidence against him stating that he had been falsely implicated on

the basis of enmity. Since the accused was not acquitted u/s 273 Cr.P.C, he

preferred to enter the defence and examined as many as eight witnesses.

6. Before we advert to the grounds of memorandum of appeal, it shall be apt

to give a brief resume of the prosecution evidence, which is as under.

7. PW-1 Jagdish Raj ASI is the Incharge Police Post Shalimar and deposed

that on 15.06.2002 while he was returning with the pilgrims from Shandri, a blast

occurred at Hing Dhar, grenades were hurled and firing took place, which

continued from 2/2:30 pm to 8/9 pm. He was accompanied by some SPOs and

VDC members, one girl and other children died on the spot and 14 to 15 other

persons sustained injuries. He shifted dead bodies and injured to Hing village. Dy

SP and army persons came over there. Next day on 16th while he was coming

back, he found a dead body lying on the way at Akra and it was identified by the

people of one Ahmed Ullah, a PHE employee. The body was taken to a school

building, where dead bodies of VDC members were also lying. After the

postmortem, the dead body was handed over to the legal heirs. He has admitted

the report EXP-A and the FIR lodged by him.

On cross examination he has stated that they started journey at 10 am and

on the next day when he was returning and reached Naber Nallah, Ghulam Rasool

master, Abdul Rehman and others met him on the way and he was told by the

master that he had heard about the occurrence at Kishtwar and his brother had

also been killed that is why he was going to the village. He did not arrest the

accused and people would say that the accused had killed the deceased. The

accused came on the spot two hours after the firing started and he also fired on the

militants.

8. PW-2 Ghulam Rasool has stated that on 15.06.2002 he was posted in High

School Nag Bhatna and was on duty. The deceased Ahmed Ullah was his brother

and he was employee of PHE department and he was posted in village Akra. On

15.06.2002 at 4:15 pm, after the school hours he came to know that the yatra

(pilgrimage) had been attacked at Hing Dhar and 2/3 persons including the

persons from Akra had died due to the blast. He proceeded towards Akra with his

younger son and when they reached near the village, he saw the accused Bansi

Lal coming, pointing gun where his brother was repairing the line. The accused

was shouting that he will kill every Muslim and at the same time he shot his

brother dead. On seeing the occurrence, he got frightened and returned home. He

along with his brother Abdul Hamid reported the matter in Police Station,

Kishtwar. On 16.06.2002 police came to the spot. Postmortem of his brother and

VDC members were conducted and dead bodies were handed over to the

respective heirs. Clothes were seized, clay was seized and the documents were

prepared.

On cross examination he has deposed that the occurrence took place at

about 4:30 to 5 pm. There are houses of accused Bansi Lal and his brothers near

the place of occurrence, shop of Jodh Ram is also there, Ghulam Hussain and

Mohd Ramzan and one more person were also with the deceased. He had heard

that three persons had died in the firing at Hing Dhar Forest. He does not know

whether widow of the deceased had received ex-gratia relief or not, but son of the

deceased was appointed at his place.

9. PW-3 Abdul Rehman has stated that deceased was a PHE employee and

accused is an SPO. On 15.06.2002 while he was returning from Kishtwar, when

he reached the village at about 4/5 pm, he saw accused Bansi Lal shouting that he

will kill any Muslim found. The accused was holding a gun and ammunition and

he shot Ahmed Ullah dead. He witnessed the occurrence from a distance of about

20/25 meters. He returned due to fear. He stayed at Sunder Bani for the night and

next day went to his house. Had he appeared before the accused, the accused

would have killed him.

On cross examination he has stated that it takes about 45 minutes to reach

Akra from Sunder Bani, but he took about four hours to cover the distance and

nobody met him on the way. There are 20/25 houses in village Akra but none met

him. He saw the face of the accused when he fired. The deceased was at a

distance of 20/25 meters from him. He was sitting and the moment he got up,

accused fired at him from a distance of 5/6 meter. On hearing the gun shot,

villagers came out. He had heard one gun shot only. He had heard that pilgrims

were fired by the militants and 4/5 persons had died. The deceased was subjected

to the postmortem. His statement was recorded on 16.06.2002.

10. PW-4 Ghulam Hussain has deposed that he is a PHE employee. He has

stated that the deceased was also a PHE employee posted at Akra. On 15.06.2002

both of them were repairing a line at Akra and on the said day, the pilgrimage had

been to Shandri. Accused was shouting that which ever Muslim would come in

the way, he will shoot him. On hearing this, deceased Ahmed Ullah got up and at

the same moment accused shot him down. He fled away. Police came on spot

next day and recorded his statement.

On cross examination he stated that the pilgrimage retuned next day from

Shandri and he had heard that pilgrims were attacked by the militants and some

three persons had died. He does not know as to whether master Ghulam Rasool

was at Kishtwar on the day of occurrence or not. He heard that two Hindu

children and two Muslim boys were killed in the blast at Dhar and total five

persons had died. They fled away after the occurrence and disclosed the incident

to their co-villagers and he revealed the incident to his wife.

11. PW-5 Mohd Ramzan is also a PHE employee and stated that deceased

was his colleague. He along with deceased and Ghulam Hussain would help each

other in their work. On the day of occurrence, while they were repairing a water

line for the pilgrims, at about 5/5:30 pm accused Bansi Lal suddenly appeared

shouting that he will kill a Muslim where ever he appears. On hearing this the

moment deceased Ahmed Ullah got up, he was shot dead by accused and he fled

away. Police came to the spot on the next day. Dead body was shifted to a school

and the dead body was handed over to Ghulam Rasool after the autopsy.

On cross examination he has stated that Khurshid Ahmed S/o Ghulam

Mohd Butt has lodged a report against Ghulam Rasool and others on the basis of

some dispute. He does not know as to whether the militants used to take shelter in

the house of Ghulam Rasool or not. Police had arrested master Ghulam Rasool

and others. He had heard that militants had fired indiscriminately, due to which

100/150 persons fled from the jungle and three persons died on the spot. He had

seen the accused at the distance of 20 feet, accused was in SPO's uniform and

was armed with SLR. The accused fired at the deceased from a distance of about

30/40 feet, from the roof of Jodh Ram's shop. He again stated that the accused

fired after crossing the shop of Jodh Ram. He informed the villagers about the

occurrence, but not the police. He was frightened and was not in senses. The

deceased was his cousin. The witness has admitted that son of the deceased was

appointed in PHE department in the place of his father, but he has reflected his

ignorance as to whether widow of the deceased claimed relief from SDM on the

ground that the deceased had died in cross firing of STF and militants. Nobody

went to the place of occurrence till the police came to the spot next day. None else

then both of them went to the spot at the time of occurrence. There might be

20/25 houses in village Akra. PW-Ghulam Rasool was at Kishtwar on the day of

occurrence and reached the spot some time before the arrival of SDM. He re-

gained conscious on 10th day of the occurrence.

12. PW-6 Ghulam Mustafa has stated that the deceased was a PHE employee

and his duty was at Akra. On 15.06.2002, he had been to shop at Akra and when

he was sitting on the shop, he saw accused Bansi Lal came running and asking all

the Muslims to appear. Deceased Ahmed Ullah was repairing a pipe and the

accused fired at him on the left side and he fell down. He got frightened and fled

away. He reached his house via jungle and disclosed at Nag Bhatna that the

accused had shot down the deceased Ahmed Ullah. Police seized clothes of the

deceased and took dead body in its custody.

On cross examination he has stated that he had gone to purchase goods

from the shop. There were Mohd Sharief and Mohd Shafi at the shop of Jodh

Ram. He had heard that pilgrims were attacked by the militants and three persons

died in the cross firing. He witnessed the occurrence from a distance about 10

yards. Accused fired upon the deceased from the shop of Jodh Ram Bhagat from a

distance of 50/60 feet. On reaching home, he disclosed the occurrence to his

family and then to the wife of Ahmed Ullah. The Force from Haloor Post came to

their village in the evening and they included Khurshid Ahmed, Irshad and Sher

Mohd etc. He disclosed the occurrence to them that accused had shot down

Ahmed Ullah. The deceased was his cousin. He does not know as to whether legal

heirs of deceased had received ex-gratia relief or nor, but his son was appointed in

his place.

13. PW-7 Ghulam Mohd is the witness to the receipt of dead body of the

deceased. He has admitted the receipt.

14. PW-8 Ghulam Ali is also the witness to the receipt of dead body EXPW-8

and stated that the deceased was an employee of PHE department. He had heard

that the deceased was killed by the accused.

15. PW-9 Abdul Latief is son of the deceased and has stated that on 16.06.2002

he went to Nag Bhatna and heard that his father had been killed on 15 th and he

was told by the people that Bansi Lal accused had killed his father. His statement

was recorded by the police on 02.07.2002. SLR rifle of the accused along with

two magazines and two cartridges were seized and sealed and the seal was kept

on the superdnama of Ghulam Rasool.

On cross examination he has stated that pilgrims were also attacked in their

area. He does not know as to whether his mother has received any relief or not.

He failed to identify his signatures on the affidavit dated 30.07.2002, purported to

have been executed by him, on the file because it was a photostat copy and stated

that he does not remember as to whether he had produced any affidavit in the

department or not, but he was appointed in place of his father.

16. PW-10 Sanjay Kumar SPO is the witness to the seizure memo EXPW-SK.

17. PW-11 Bindru Lal is witness to the seizure memo EXPW-10 of a register.

18. PW-12 Bashir Ahmed is also witness to the seizure of register EXPW-SK.

19. PW-13 Kaka Ram was the Incharge of Bhatkoot Post in the year 2002. He

has stated that as per the directions of SDPO, he deputed Bansi Lal accused with

the pilgrimage. Three/four others persons were also deputed. But he did not

accompany the pilgrimage. Jagdish Raj, Officer Incharge Police Post Shalimar

was the incharge of the pilgrimage. The Force deputed was directed to report back

after the pilgrimage and every body except accused Bansi Lal reported back. The

pilgrims were attacked by the militants in which four to five persons including

brother of accused Bansi Lal had died. He was told by other members of the party

that Bansi Lal's brother had been killed and he had gone for the last rites. The

ammunition issued to the accused was not deposited by him, as he had left for his

house without any permission.

On cross examination he has stated that the force was deputed to 12th June

to 16th June and the pilgrims were attacked by the militants on 15.06.2002. He did

not visit the spot.

20. PW-14 Subash Chander Patwari is the revenue official, who has prepared

the site map EXPW-14 and he has admitted the same. In cross examination he has

stated that he visited the spot on 20th July and prepared the map at the instance of

police.

21. PW-15 Dr. Javed Iqbal Giri, Assistant Surgeon, SDH Kishtwar has stated

that he was directed by the BMO Kishtwar to conduct autopsy on the dead body

of Ahmed Ullah on 16.06.2002. On conducting the autopsy, he found following

injuries on the person of the deceased:

(1) Wound of entry in the left Mid axillary one anteriorly in 4th intercostal space about 1cms x 1cm in dimension without any scroaching or blackening around the wound. It traverses interiorly though left lung, then to left atrium, then right atrium then through lung and with would of exit in right side of chest in postaxillary line in 6th intercostal space about 3 cms x 3 cms in dimension. The duration of injury was less then 48 hours. He has also found fracture of 4th and 5th ribs left side of chest anteriorly. Fracture of 6th and 7th ribs on right side in post axillary line. Leura ruptured. Lungs perforated.

22. In his opinion the deceased had died due to bullet shot, resulting massive

loss of blood leading to cardiorespiratory arrest. He has admitted the postmortem

report.

On cross examination he has stated that autopsy was conducted at

Kuntwara in the premises of Nag Bhatna School. On the same day he conducted

three/four more autopsies and cause of death of all other persons was also the

bullet shots. He cannot say whether the shape of burnt area, was oval or circular.

The police did not show him the clothes worn by the deceased. He cannot opine

that which type of fire arms had been used in this case, because he is not a Blastic

Expert. The police did not produce any weapon of offence for his opinion. Since

there was no blackening around the wound, so the deceased might have received

the gun shot from a distance of two/three feet. He has admitted some overwriting

in his postmortem report at two/three places and he has not endorsed any initial

over the said overwriting.

23. PW-16 Dost Mohd ASI is the investigating officer, who conducted the part

investigation. He has stated that the investigation was assigned to him on

01.07.2002 and initial investigation was conducted by ASI Jagdish Raj. During

investigation, he arrested the accused Bansi Lal, recovered one SLR rifle, two

magazines and four live cartridges from the possession of accused. He has

admitted the seizure memos EXPW-18 and EXPW-SK. The rifle, magazines,

cartridges and clothes were got resealed from Tehsildar Kishtwar and sent for

chemical examination to FSL. He obtained the postmortem report and seized

register regarding issuance of arms and ammunition to the accused. He has

admitted the seizure memos in this respect. He also obtained the site plan of the

place of occurrence and recorded the statements of witnesses u/s 161 Cr.P.C.

Offence u/s 302 RPC, as per his investigation, was established against accused

Bansi Lal. The challan was prepared by the SHO and presented in the court. He

has identified the seized articles in the open Court, but SLR etc. were not received

back from the FLS.

In cross examination he has stated that he arrested the accused on

02.07.2002 after calling him in the police station and also seized SLR and

magazines from his possession in the police station and prepared the seizure

memo there. He has no knowledge about the cross firing. He recorded the

statements of the witnesses u/s 161 Cr.P.C on 02.07.2002, 12.07.2002,

21.07.2002 and 22.07.2002.

24. PW-17 Mohan Lal Thakur is the officer who has prepared the challan and

presented in the Court.

25. This is all about prosecution witnesses and as already stated that since

accused was not acquitted u/s 273 Cr.P.C, therefore, he has examined the

following eight witnesses:-

26. DW-1 Roop Lal has deposed that deceased Ahmed Ullah was killed in the

cross firing of the militants on 15.06.2002. He had accompanied the pilgrims. The

deceased was on duty to arrange water for the pilgrims as he was a PHE

employee. Accused Bansi Lal was on security duty with yatra. At Hing Dar, the

militants committed a blast and opened fire, which was retaliated by the force in

his presence and six persons including the deceased Ahmed Ullah died on the spot

in the said cross firing. Accused has been falsely implicated.

27. DW-2 Ghulam Rasool Head Constable has produced the relevant register

of Daily Diary of June 2002 and deposed that FIR No. 85/2002 for offences u/s

302/307 RPC, 7/27 A. Act, 3/4 P.S.S. Act has been entered at Serial No. 16 of

15.06.2002 at16:15 hours. The contents of the report that information had been

received from reliable sources that Officer Incharge, Police Post, Shalimar was

accompanying the pilgrimage from Shandri to Kishtwar and on their way back,

when they reached near Hing Forest, militants blasted an IED, as a result of which

two pilgrims died on the spot and five others sustained serious injuries. The police

party also retaliated in the self-defence, but militants opened indiscriminate fire

and fled to the forest. As per the information, commission of offences u/s

302/307/120 RPC, 7/27 A.Act and 3/4 P.S.S.Act is found to be made out, as such

FIR No. 85/2002 for the said offences is registered and investigation was assigned

to Jagdish Raj, Officer Incharge, Police Post Shalimar. The page of Roznamcha

(Daily Dairy) containing entry of FIR No. 88 is torn.

28. DW-3 Riaz Ahmed has deposed that he was SPO for the last about 12 to 13

years. In the month of June, 2002 he was posted in VDC at Nag Bhatna. On

15.06.2002 he was deputed with the local pilgrimage from Bhandera to Shandri.

Eight other persons including accused were also on duties as SPOs and when

yatra reached midway a blast occurred, followed by indiscriminate firing from

both the sides, as a result of which three pilgrims, two VDC members and Ahmed

Ullah PHE employee died on the spot. Accused Bansi Lal did not kill Ahmed

Ullah Butt. Affidavit dated 17.04.2003 is executed by him. In his cross

examination has stated that Jagdish Raj was their incharge at the time of

occurrence. Brother of the deceased namely Ghulam Rasool master is the

miscreant.

29. DW-4 Ajaz Ahmed has deposed that deceased's son Abdul Latief was

appointed in PHE department under SRO 43 vide order dated 26.10.2002 issued

by the Chief Engineer PHE, Jammu. The widow of the deceased had filed two

affidavits for seeking said appointment, submitting that deceased Ahmed Ullah

Butt died on 15.06.2002 in the cross firing between militants and the security

forces. He has admitted the copies of the affidavits as true as per copies on their

file. In cross examination he has clarified that Abdul Latief, son of the deceased

was appointed vide order dated 26.10.2002 and the case was processed by Xen,

PHE Kishtwar.

30. DW-5 Mohd Ashraf has deposed that in the month of June 2002 he was

posted as SPO at Nag Bhatna Kuntwara. On 15.06.2002 he was deputed for the

protection of the pilgrimage and accused Bansi Lal was also deputed as SPO.

When the pilgrimage reached midway, a blast was caused by the militants

followed by indiscriminate firing, which was retaliated by the forces and the VDC

members and one Ahmed Ullah S/o Gani Butt were killed in the cross firing.

Accused Bansi Lal did not kill the deceased. Affidavit dated 17.04.2003 was

executed by him.

31. DW-6 Mushtaq Ahmed is a petition writer who has written the affidavit

dated 30.07.2002. He has admitted that the affidavit dated 30.07.2002, photocopy

of which is on the file, is in his handwritting and signatures and stated that the

affidavit was written by him at the instance of Hamida Begum wd/o Ahmed Ullah

Butt, R/o Nag Bhatna, Tehsil Kishtwar, in which she had affirmed that her

husband died in the cross firing between militants and the security forces on

15.06.2002. The said affidavit was executed by the deponent for appointment

under SRO 43 and a similar affidavit was executed by her son Abdul Latief which

was also written by him. In his cross examination he has stated that he had

entered the affidavits in his register at serial No. 239-240.

32. DW-7 Yash Paul is the Junior Assistant, posted in the office of Dy.

Commissioner, Doda. He has produced the record regarding the ex-gratia relief

along with record of Ahmed Ullah. As per the record, vide order dated 21.02.2003

legal heirs of the deceased had obtained ex-gratia relief of Rs.1.00 lac, after

enquiry made by Patwari, Girdawar, Tehsildar and SDM Kishtwar and as per the

said enquiry, the deceased had died in cross firing on 15.06.2002. The ex-gratia

relief is granted only in favour of victims of militancy related incidents.

33. DW-8 Bansi Lal is the employee of PHE Department has stated that on

15.06.2002 when the pilgrimage was on its way back from Shandri and he was

accompanying the pilgrimage, the militants blasted a bomb at Hing Dhar due to

which seven persons including Ahmed Ullah, Ghulam Rasool, a girl, brother of

Bansi Lal (accused), Sanjay Kumar and Rakesh Kumar had died. He had seen

these persons dead and they fled from the spot. The police has falsely implicated

the accused as the deceased died in cross firing.

34. This is the crux of the defence evidence.

35. On the conclusion of the trial, learned trial court after hearing the rival

contentions, analyzing and appreciating the evidence, the record and having

considered the law governing the field concluded that the prosecution failed to

establish guilt of the accused beyond reasonable shadow of doubt. Consequently,

the respondent was acquitted of the charges.

36. The appellant-State has questioned the impugned judgment inter alia on the

ground that learned trial court has failed to appreciate the evidence in right

perspective as the oral as well as the documentary evidence adduced by the

prosecution was sufficient to sustain conviction of the respondent. According to

the appellant, learned trial Court has ignored the important pieces of evidence and

the impugned judgment has been passed on surmises and conjectures.

37. Heard arguments and perused the file.

38. While Mr. Eishaan Dadhichi, learned GA appearing for the appellant has

reiterated the grounds urged in the memorandum of appeal, Mr. A. K. Shan,

learned counsel appearing for the respondent has vehemently argued that the

prosecution evidence adduced in the trial court is not only self-contradictory but

discrepant on material aspects. According to Mr. Shan, the prosecution witnesses

have contradicted each other with respect to their presence at the scene of

occurrence and the careful analysis of the prosecution evidence would rather lend

credence to the defence evidence adduced by the respondent that the respondent

was falsely implicated in the case only to secure ex-gratia relief and

compassionate appointment by the son of the deceased.

39. The prosecution in order to bring home guilt of the respondent and to

sustain conviction seeks to rely upon the account of the eye witnesses as also the

attending circumstance. The prosecution has examined five eye witnesses,

including PW-2 Ghulam Rasool, PW-3 Abdul Rehman, PW-4 Ghulam Hussain,

PW-5 Mohd Ramzan and PW-6 Ghulam Mustafa. Admittedly, all these witnesses

to the occurrence are either related to the deceased or the interested witnesses in

one way or the other.

40. It is trite that the prosecution case cannot be thrown overboard merely on

the ground that the prosecution witnesses are related or interested witnesses. The

legal position is that in such an eventuality the testimonies of the related or

interested witnesses are to be scrutinized carefully and with circumspection as the

said witnesses might be over-zealous to ensure that the accused is convicted. At

the same time, if the evidence of such witnesses is free from infirmities and

discrepancies and inspires confidence, it can be made basis for the conviction of

the accused. Now let us proceed to evaluate the testimonies of the five eye

witnesses in the light of the settled principle of law.

41. We find force in the argument of Mr. Shan, learned counsel appearing for

the respondent that all the eye witnesses have not only contradicted but disputed

the presence of each other at the scene of occurrence. It is significant to underline

that all the eye witnesses are stated to have witnessed the occurrence from a

distance of 10 to 30 feet and therefore, in the event of presence of all of them at

the time of occurrence, they are supposed to have seen each other on the spot.

However, a careful appreciation of their testimonies would show that only PW-4

Ghulam Hussain and PW-5 Mohd Ramzan have stated about the presence of both

of them at the time of the alleged occurrence and they categorically ruled out the

presence of rest of the evidence. PW-5 Mohd Ramzan has stated that he and PW-

4 Ghulam Hussain were present on the spot and none else was there. If the

statement of PW-5 Mohd Ramzan, in particular his cross examination, is carefully

perused, it is evident that PW-5 Mohd Ramzan has even doubted the presence of

PW-4 Ghulam Hussain on the spot as he has reflected his ignorance as to whether

PW-2 Ghulam Rasool, PW-3 Abdul Rehman and PW-4 Ghulam Hussain

accompanied the police on the next day or not. Now PW-2 Ghulam Rasool has

categorically stated that PW-4 Ghulam Hussain was at Kishtwar on the day of

occurrence and he reached the spot on the next day i.e., on 16.06.2002 just before

the arrival of SDM. The presence of PW-2 Ghulam Rasool, on the other hand has

been ruled out by none other then by the investigating officer PW-1 Jagdish Raj,

who has stated that on 16.06.2002 i.e the next day of the occurrence, PW-2

Ghulam Rasool met him in the Nalla, on his way back to his village from

Kishtwar and revealed that he had heard about the firing by the militants on the

pilgrims and the death of his brother and that is why he was going home.

Therefore, the presence of PW-2 Ghulam Rasool, real brother of the deceased, has

been ruled out by the investigating officer. Similarly, PW-5 Mohd Ramzan has

categorically deposed that PW-6 Ghulam Mustafa was at home at the time of

occurrence. It is pertinent to mention that PW-5 is cousin brother of the deceased

and he cannot be believed to have falsely stated about the absence of PW-2 on the

spot. PW-6 Ghulam Mustafa has not stated about the presence of any other eye

witness and rather testified that rest of the persons namely Mohd Ashraf and

Mohd Shafi were present at the shop of Jodh Ram Bhagat, from where he

witnessed the occurrence and stated that accused fired from the roof of the shop

of Jodh Ram or after crossing his shop but none of the said persons have been

cited as prosecution witnesses. Therefore, an assiduous appreciation of the

testimonies of the so-called eye witnesses would leave no room for doubt that the

presence of any one of these witnesses is highly doubtful at the scene of

occurrence. The statements of these witnesses, stated to be eye witnesses to the

occurrence, when carefully read individually or jointly it is clear that their

statements are self-contradictory in nature. The presence of PWs 2, 3 and 6 is not

only ruled out but rather their absence at the scene of occurrence is established.

42. The observations of learned trial court that the presence of the eye

witnesses at the place of occurrence was highly doubtful and the reliance placed

on the judgment reported as AIR 1974 SC 343 is well founded. The reasons given

by learned trial court in support of this conclusion appears to be cogent and we

find no particular ground to take a different view. It is manifest that the eye

witnesses upon whose testimonies the prosecution seeks to sustain conviction of

the respondent are not worthy of reliance. The case on hand is a case where each

prosecution witnesses would condemn the other and in this state of affairs, we

find it difficult to secure affirm ground upon which the conviction of the

respondent can be sustained.

43. The next discrepancy noticed by learned trial court is with respect to the

time of occurrence. According to PW-4 Ghulam Hussain, he left home at 4:30

pm, but as per PW-5 they worked for two/three hours on the upper side of the

place of occurrence before reaching the spot. It means that the occurrence took

place around 7/8 pm and not at 5/5:30 pm as deposed by him and rest of the

prosecution witnesses, in their chief examination, stated that the occurrence took

place at 4:30 to 5:30 pm. PW-5 has stated that when he saw the occurrence, he

was frightened and fell unconscious. He has further stated that he regained

conscious after about 10 days. In these circumstances, he could not narrate the

occurrence to the villagers as stated by him. In this view of the matter, the eye

witnesses have not only contradicted each other, but render the prosecution story,

as to the time of occurrence, doubtful.

44. Another vital aspect of the entire prosecution case, rightly underlined by

learned trial court is delay in recording the statements of the prosecution

witnesses. The investigating officer PW-16 ASI Dost Mohd has categorically

stated in his cross examination that he recorded the statements of witnesses u/s

161 Cr.P.C on 02.07.2002, 12.07.2002, 21.07.2002 and 22.07.2002. It is the

prosecution story that the occurrence took place on 15.06.2002. The prosecution

seeks to rely upon the statements of the eye witnesses, who are stated to have

witnessed the occurrence. The eye witnesses are close relatives of the deceased

and if they had witnessed the occurrence, there was no occasion for the

investigating agency to record the statements of the eye witnesses after such a

length of time. The statement of some of the witnesses have been recorded after

seventeen days, while the statements of others were recorded after about 27 days

and the statements of some of the prosecution witnesses have been recorded after

about 35 days. This amount of delay in recording the statements of the

prosecution witnesses goes to the root of the entire prosecution case and we find

ourselves in agreement with the observations of learned trial court that the delay

in recording statements of eye witnesses by the investigating agency rather makes

their presence at the scene of occurrence doubtful.

45. The un-natural conduct of the eye witnesses after the commission of the

alleged crime, too cannot be lost site of. No doubt the respondent at the relevant

time was alleged to have been in possession of fire arms and ammunition. But it is

hard to believe that real brother and cousin brothers of the deceased, who stated to

have witnessed the respondent firing at the deceased and on seeing their dear one

being killed in the hands of a single person could not muster courage to even raise

an alarm or reveal the incident and rather fled from the spot. The learned trial

court has rightly observed that five eye witnesses in such circumstances, who

happened to be blood relations and close relatives of the deceased could have

over-powered the accused and nab him then and there, as they out numbered the

assailant and if they failed to gather such courage, they would have definitely

raised an alarm to apprehend the accused or inform the villagers about the

involvement of the respondent in the occurrence. If the prosecution evidence is to

be believed, the eye witnesses reached the spot on hearing hue and cry of the

villagers and in such circumstances, they would have gained strength and join the

villagers to apprehend the accused, instead of running away leaving behind their

dear one in a pool of blood. The explanation offered by the eye witnesses that

they were frightened, therefore, is not plausible and the un-natural conduct on

their part to ran away from the place of occurrence on seeing their close relative

being killed at the hands of a single person leads to the only inference that they

were not present at the time of occurrence. The reliance placed by the learned trial

court on the judgment of this Court reported as 1996 SLJ 264, in support of his

view is well founded. The relevant extract contained in Para 29 of the judgment is

reproduced below:

"29. Having rejected the dying declaration, the other evidence may be considered. Eye witness of the prosecution is Ravi Kant, younger brother of the deceased. Apart from being a chance witness, on merits as well his statement is not truthful. He may be plying an auto-rickshaw that does not mean he saw the occurrence and shifted the deceased to the hospital. His conduct betrays and demolishes his statement. Had he seen the occurrence and his brother being beaten, the natural reaction on his part would have been to come forward, to rescue his brother from the clutches of the accused. He could have raised hue and cry asking people from the adjoining hops to come forward and help him."

A similar view has been taken in (2002) 9 SCC 431, in the following

words:

"10......Besides, the conduct of the three witnesses also appears to be rather unnatural. Abhey Singh is the son of the deceased yet he

kept standing as a mute spectator and did not even raise an alarm. This conduct belies normal human conduct."

46. The unnatural conduct of the villagers, is the next circumstance noticed by

learned trial court and we do not find any fault with the said observation as well.

As per the prosecution evidence, the villagers raised hue and cry and in that

eventuality they would not only have gone to the spot but reported the matter to

the police. Learned trial court has rightly observed that if the villagers were also

scared, they would have at least narrated the occurrence, to the police, having

taken place on 15.06.2002 without naming the assailant, but there is absolutely no

evidence that till next day i.e on 16th June, anybody saw the dead body of the

deceased lying on the spot as it is the prosecution case that it was PW-1 Jagdish

Raj ASI who saw the dead body for the first time on 16.06.2002.

47. The presence of the eye witnesses is also doubtful because they were near

relations of the deceased and they failed to inform the police for about 17 to 25

days as their statements came to be recorded by the police on 02.07.2002 and

10.07.2002. The eye witnesses have stated that they do not remember as to when

their statements were recorded by the police, but they have nowhere stated in their

respective statements that they disclosed the occurrence to the police on the same

day or on the next day. PWs 4 and 5 have categorically stated that they disclosed

the occurrence to the villagers in the same evening, but they did not inform the

police though there was admittedly a Police Post in their village at Nag Bhatna.

48. Commenting upon the unnatural conduct of the eye witness, this Court in

SLJ 2005(1) 138 has refused to rely upon the testimony of such witness. The

relevant extract of the judgment is as follows:

"11. In the instant case, PW-Des Raj, though has been examined as an eye witness of occurrence, but his testimony neither appears to be consistent, positive, cogent and trust worthy nor appears to be

confident in the Court. PW-Des Raj though left the company of the accused on 14th August, 1996 and came back to his village in his family. He, however, did not disclose about the occurrence to anybody either in the family or to the villagers. The evidence in the case forthcoming from the record is that the accused threatened him to kill in case of his disclosure about the occurrence. It is in the evidence of PW- Des Raj that he did not join the Army Butchery in Pathankot. The explanation in such circumstances, in non- disclosure of occurrence till 18th August, 1996 neither seems to be sufficient nor satisfactory, genuine, acceptable and believable. When he remained in his family in his own village, all fear and threat in normal course no longer remained in the mind of the witness particularly when he has seen the murder of the deceased who happened to be his near relation....."

A similar view has been taken by this Court in KLJ 1998, 157, in the

following words:

"8. This evidence has no credibility for so many reasons, the foremost being that Des Raj and Sewa Ram PWs being the relations and also the residents of same village, were available for recording their statements before the police. They have not come forward till July 21, 1985 to narrate the incident. Therefore, the credibility of these witnesses looses significance. Another aspect of the matter for discrediting the evidence of thee witnesses is that the reason for not coming forward till July 21, 1985, has not been explained by the prosecution as to why these witnesses had not made the statements."

49. We are conscious of the legal position that the prosecution case cannot be

disbelieved only on the ground of defective investigation, provided the

prosecution evidence otherwise is credit-worthy and inspiring confidence.

However, remissness on the part of investigation in the present case goes to the

root of the prosecution case as neither the statement of the prosecution witnesses

are truth-worthy nor the conduct of the eye witnesses inspires confidence about

their presence at the scene of occurrence.

50. We have failed to understand as to what prevented the investigating agency

from recording the statements of the witnesses, the eye witnesses in particular, on

the day of occurrence or immediately thereafter when admittedly the police

officers including the Dy SP reached the spot on the very next day of the

occurrence i.e on 16.06.2002. The investigation of the case was remained with the

investigating officer PW-1 Jagdish Raj till 01.07.2002, but he has failed to explain

as to why the statements of witnesses were not recorded by him and why the

name of the assailant was not disclosed to him by the eye witnesses. It casts a

serious doubt not only in the manner the investigation of the present case has been

conducted but also to the veracity of the prosecution witnesses. It is worthwhile to

underline that the prosecution witnesses have nowhere stated that they have

disclosed the name of the assailant to the police. The I.O has clearly stated that he

had seen the dead body at the first instance on 16.06.2002 and shifted the body to

the school building. But he nowhere stated that he was told by the witnesses that

the deceased had been killed by the respondent. In these circumstances, the

manner in which the investigation in the present case has been conducted renders

the whole prosecution case doubtful.

51. Hon'ble Supreme Court in AIR 1977 SC 1116, commenting upon the delay

in recording the statements of the witnesses, has made the following observation:

"8...It has however not been controverted before us that Saklu Gond was not examined by the investigating officer Markandev Singh until someone and a half months after the incident even though Saklu Gond has stated that he was presented at the place of occurrence when the investigating officer arrived there. If he had been such a reliable witness as has been found by the High Court, the investigating officer would have examined him much earlier. In any case the inordinate delay in recording his statement has not been explained."

52. The prosecution also seeks to rely upon the circumstantial evidence. The

law with respect to circumstantial evidence is by far crystallized now that the

conviction can be sustained on the basis of circumstantial evidence provided there

is a complete chain of circumstance leading to the only hypothesis that it was the

accused only who has committed the crime and the circumstances are inconsistent

with his innocence.

53. The prosecution seeks to rely upon the recovery of two weapon of offence.

The accused was issued official weapon i.e., SLR, which has been seized from the

possession of the respondent during the investigation. It is also settled law that the

accused cannot be convicted merely on the basis of seizure of weapon of offence.

As per the prosecution case, the police reached the place of occurrence on the

very next day, but it is strange that no empty of used cartridge has been recovered

from the place of occurrence and the investigating agency has failed to offer any

explanation for this lapse. The weapon of offence is alleged to have been sent to

the FSL for chemical examination and as per the FSL report, the gun was in

working condition and was used. However, the prosecuting agency has failed to

examine the Scientific Officer in the court and therefore, the FSL report having

not been proved his inadmissible in-evidence as the FSL report is not per se

admissible in view of law laid down by this Court in 2007(1) SLJ 280.

54. The learned trial court has rightly observed that as matter of fact the empty

was not only required to be recovered in this case but a specific opinion was

needed to be obtained and proved that the said empty is of the cartridge used in

the gun possessed by the accused, to connect the bullet hitting the deceased with

the rifle of the accused. This legal requirement was otherwise essential given the

fact that immediately before the occurrence there was a militant attack on the

pilgrimage and some VDC members and the civilians were reported to have died

in the cross firing which continued between the militants and the security forces,

even during the time of the alleged occurrence of the present case. The

prosecution was obliged to prove beyond every shadow of doubt that the deceased

in the present case had died as a result of bullet fired by the respondent from his

service rifle to rule out the possibility of having been hit by the bullets of militants

or in the cross firing. The prosecution has also failed to prove the number of

bullets issued in the name of the respondent and number of bullets used by him.

The prosecution has rather failed to prove not only the number of bullets issued in

the name of respondent but found missing after the occurrence. Had the

prosecution succeeded to prove this fact, some inference could have been drawn

against the accused in the absence of counting for the missing bullets.

55. This Court in Gotam Rai vs State of J&K, reported as 1998 SLJ 240,

has observed as below:

"28.....it was incumbent upon the prosecution to connect this gun shot with the weapon of offence. Prosecution has nowhere proved that the SLR which the accused was carrying was allotted to him. Prosecution has nowhere proved as to how many rounds had been issued to the accused, how many were seized and how many were missing. It has further been held:-

.......It has not been proved that the empty Khokha, which was seized was of the SLR which was carried by the accused and which was used for the gun fire. Meaning thereby the bullet which was killed the deceased has not been proved that it was the bullet of the SLR which was allotted to the accused. This is a big lacunae in the case. We are in full agreement with the arguments of learned counsel for the appellant that by this way accused has not been connected with the crime."

56. The prosecution also seeks to rely upon the circumstance of absence of the

respondent after his duty. As per PW-13 Kaka Ram, immediate officer of the

respondent, the respondent did not report back after the pilgrimage was over

despite clear instructions. However, PW-Kaka Ram has himself clarified about

the absence of the respondent after his duty and that is death of his brother in the

same cross firing. Although death of the brother of the respondent can be assumed

to be a motive for the respondent to kill the deceased, as he was alleged to be

found shouting to kill every Muslim coming on the way out of anger or under the

influence of emotions, but the circumstance itself is not sufficient to hold the

accused guilty of offence. PW-1 Jagdish Raj, who happens to be one of the

investigating officers has also stated that accused joined them two hours after the

cross firing, but the investigating officer has not revealed the actual time or the

place where the respondent parted his accompany. Merely because the

respondent/accused returned to his duty two hours after the cross firing is not

sufficient to prove that he killed the deceased. In the circumstances, the defence

evidence gains credibility and absence of the accused has been clearly ruled out

by the defence witnesses. DW-3 Riaz Ahmed and DW-5 Mohd Ashraf, SPOs,

happen to be the colleagues of the respondent and they all have been deputed for

the protection of the pilgrimage. They have clearly stated that deceased was killed

in the cross firing. The independent defence witnesses DW-Bansi Lal and DW-

Roop Lal have also stated that deceased died in the cross firing.

57. The probability of the deceased having been killed in the cross firing also

appears to be plausible as legal heirs of the deceased, as per the statements of the

defence witnesses, received the ex-gratia relief and even son of the deceased had

been appointed under SRO 43 in place of the deceased. It is pertinent to mention

that the factum with respect to the son of the deceased having been appointed in

his place on compassionate ground has been admitted by the prosecution

witnesses as well and the prosecution witnesses have merely evaded the question

that widow of the deceased had also received the ex-gratia relief on the demise of

her husband, the deceased in the case, on the ground that the deceased had died in

the cross firing. Here the statement of PW-6 Ghulam Mustafa assumes vital

significant as the said witness has clearly stated without mincing words that he

had disclosed, to the widow of the deceased, on the same evening i.e 15.06.2002

that accused had killed the deceased. The other eye witnesses, who happen to be

close relations of the deceased have also stated that it was the respondent who had

killed the deceased, therefore, the legal heirs had come to know as to how the

deceased had been killed. The ex-gratia relief came to be disbursed to the widow

of the deceased after the presentation of the charge-sheet in the trial court, only

after filing of affidavit by her that her husband had died in the cross firing. This is

sufficient to corroborate the version of the defence evidence that deceased in fact

died in the cross firing and not killed by the respondent. The learned trial court

has aptly observed that the defence evidence is not always untrustworthy and

deserves an equal weightage and the reliance placed by learned trial judge on the

judgment of this Court titled "Saida Mohd and another vs. State", reported as

2007(1) SLJ 101 is reiterated hereinbelow:

"12. But the learned Sessions Judge has not recorded any finding to the effect that what is the effect of marriage of Azamat Bi with the appellant Saida Mohd.The defence has examined nine witnesses to prove the marriage. The learned Sessions Judge has skipped over the defence evidence by observing that there was no need to examine the defence evidence as the appellant Saida Mohd himself admitted that the prosecutrix being his wife had every right to keep her. The learned Sessions Judge has to give same weightage to the defence evidence as that of prosecution and not to skip over the defence evidence. If the evidence led by the defence is not discussed by the trial court, it seriously prejudiced the accused person and on that ground the accused is entitled to be acquitted."

58. Another glaring defect in the prosecution evidence is with respect to the

site plan. Admittedly the FIR of the present case was lodged on 17.06.2002.

However, the site plan on the file is dated 16.06.2002 i.e a day prior to the

registration of the FIR. Although the site plan has not been proved and is not

admissible in defence, it raises a serious doubt as to the manner in which the

investigation in the present case has been conducted.

59. At last but not least the delay in registration of the FIR would also raise a

serious doubt as to the credibility of the prosecution case. As per the site plan on

the file, though not proved, the police came to know about the occurrence on the

same evening. As per the prosecution case as also the prosecution evidence even

the senior officers of the police including Dy SP reached on spot, but the FIR

came to be registered on 17.06.2002 at 4 pm i.e more than 30 hours after the

alleged occurrence. It is equally disturbing to note that the FIR after registration

has been presented to the Magistrate on 18.06.2002 at 4 pm i.e about 24 hours

after registration of the FIR. The prosecution has also failed to explain these

inordinate delays in the registration of FIR as also the presentation of the FIR

before the Magistrate particularly in view of the fact that according to learned trial

court the police station is across the wall of the court. The learned trial judge has

rightly observed that prompt registration of the case and immediate dispatch of

FIR to the Magistrate is only to guard against concoction and fabrication.

60. In view of what has been discussed hereinabove, we find absolutely no

illegality or perversity in the impugned judgment. Learned trial court has passed

the impugned judgment after taking into account and consideration, the evidence

on the rival sides in right and proper perspective. We find the impugned judgment

well reasoned and we have not been persuaded to take a different view from the

one taken by trial court.

61. Having regard to the above, the present appeal, being devoid of any merit,

is dismissed. Consequently, the impugned judgment is upheld.

62. Record of the trial court be returned forthwith.

                               (RAJESH SEKHRI)                   (RAJNESH OSWAL)
                                   JUDGE                                JUDGE
JAMMU
07.10.2022
Vijay
                                  Whether the order is speaking?           Yes/No
                                  Whether the order is reportable?         Yes/No