Jammu & Kashmir High Court - Srinagar Bench
State Of J&K Through Sho Police ... vs Parvaiz Ahmad Tantray And Ors on 9 June, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRAA No. 19/2017
Reserved on: 11.05.2023
Pronounced on: 09.06.2023
State of J&K through SHO Police Station
Kothibagh, Srinagar
...Appellant/Petitioner(s)
Through: Mr. Mohsin Qadiri, Sr. AAG with
Ms. Maha Majeed, Advocate
Vs.
Parvaiz Ahmad Tantray and Ors.
...Respondent(s)
Through: Mr. G. A. Lone, Advocate with
Mr. Mujeeb Andrabi, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
HON'BLE MR JUSTICE MOHAN LAL, JUDGE
JUDGEMENT
Vinod Chatterji Koul, J.
1. This appeal is against the judgment dated 14.05.2016, passed by the
Court of Additional Sessions Judge, Srinagar, in a case titled as State
v. Parvaiz Ahmad Tantray & Ors., whereby accused - respondents
herein have been acquitted.
2. The facts that stem out from the instant case of patricide are that on
06.06.2011, Police Station Kothibagh received an information from
reliable source that at Residency Road near Pratap Park, One Mohd
Afzal Khan S/o Samander Khan R/o Naharpur Sopore, has been fired
upon by a person/s through illegal weapon and has sustained critical
injury. The injured was referred to SMHS Hospital by police persons,
CRAA No. 19/2017
where he succumbed to injuries and corpse was taken into custody by
the police for post-mortem. In this regard a case bearing FIR
no.49/2011 under Sections 307 RPC and 7/27 Arms Act was
registered in Police Station Kothibagh. During the course of
investigation, one empty cartridge was recovered, effects its seizure
and sealed it, site plan of pilanda was prepared. During the further
course of investigation, the motive for the murder was found to be
money transaction, and accordingly, accused no. 1 & 2 were detained
under Section 54 of Cr.P.C. on 10.06.2011. During the course of
investigation, accused no.1 disclosed that he hatched a conspiracy
with accused nos.2 to 4 to commit the offence. Subsequently one
Chinese Pistol alongwith one Magazine with 07 cartridges were
recovered at Ribbon Sopore, from an under-construction house at the
instance of accused no.1. Recovery memo and site plan of recovery
were prepared and signed by the witnesses. Statement of witnesses
were recorded, as such, both accused no. 1 & 2 were implicated under
Section 120-B RPC. During the course of investigation, one vehicle
bearing registration no. JK05A-5721 used for the commission of
offence by accused no. 3 & 4 on the day of occurrence was also seized
and seizure memo was prepared. It also surfaced during of
investigation, that accused no.1 contacted his one relative (brother-in
law) i.e., accused no.5, who handed over one rusted pistol to accused
no.1. During interrogation, accused no.5 confessed that accused no.1
had given cash of Rs. 5000/ and a cheque of Rs.15000/- for providing
the rusted pistol. In pursuance to the disclosure of accused no.5, one
CRAA No. 19/2017
cheque for Rs. 15000/- under No. 28867736 dated 24.05.2011
deposited in account no. of accused no.5 was recovered, and
accordingly, recovery memo and site plan of recovery was prepared.
During further investigation, accused no. 5 stated that he contacted
accused no.6 (working in armed police as Armour) who alongwith
accused no.7 (police employee) repaired the rusted pistol and made it
functional for which accused no. 6 received Rs. 10,000/- and accused
no.7 received Rs. 6000/- from accused no.1 through accused no.6.
During further investigation, accused no. 7 made a disclosure that he
received Rs. 6000/- for making the rusted pistol functional and he has
kept the Rs. 6000/- in his trunk in Police Lines Handwara and Rs.
6000/- were recovered from a trunk from Police Lines Handwara, at
the instance of accused no.7. In this regard recovery memo and site
plan were also prepared.
3. It was also found during investigation that there was frequent
infighting between accused nos.1 & 2 with deceased for non-payment
of loan. The accused nos.1 & 2 hatched conspiracy with accused no.3
& 4 to get rid of deceased and planned conspiracy to kill the deceased
and in furtherance of the conspiracy accused no.1 contacted accused
no.4 (released terrorist) and promised Rs. 50,000/-, and accordingly
Rs. 20,000/- in cash was paid and rest of Rs. 30,000/- in the form of
cheque no. 26202412. The accused no. 1 informed the deceased to go
to Srinagar, along with accused no. 2 and assured him that the amount
will be paid at Srinagar, which the deceased agreed and accused no.2
and deceased left for Srinagar in a Sumo and reached at 12:16 hours at
CRAA No. 19/2017
Regal Chowk, which also proved by call details and tower location of
deceased bearing SIM No. 9797963073 and Cell phone
No.959641080 of accused no.2. That for accomplishing the
conspiracy on 06.06.2011, accused no. 1, 3 and 4 left from Sopore
along with arms and ammunition in the vehicle bearing registration
No. JK05A-5721 and the presence of accused no. 1 to 4 was
established at Residency Road through call details and Tower
location. In the meantime, accused no. 4 at the instance of accused no.
2 and in conspiracy fired through Chinese Pistol at blank range upon
the deceased's head who sustained critical injuries and later on
succumbed to the same. The accused nos.1 to 4 ran away in the
vehicle from the spot. On this information, a case under Sections 302,
120-B, 109 RPC and 7/27 of the Arms Act was proved against the
accused persons. The investigation of the case commenced, which
culminated in the presentation of a charge sheet against the accused
before the competent court, who eventually committed the case for
trial to the Court of the Principal Sessions Judge, Srinagar. The
Sessions Judge charged the accused with the commission of an
offence under 302, 120-B, 109 RPC and 7/27 of the Arms Act. The
accused pleaded not guilty. They claimed to be tried and, accordingly,
prosecution was asked to produce evidence in support of the charge.
Prosecution examined as many as 31 witnesses, namely, PW-1,
Gulam Mohidin Rather PW-2, Waid Yousuf Kenu, PW-3 Mohd
Mubarak Shigan, PW-4 Wahid Hussain Khatab, PW-5, Manzoor
Ahmad Khan, PW-6, Shahida Khan, PW-7, Mohd Younis Tramboo,
CRAA No. 19/2017
PW-8, Bilal Ahmad Rather, PW-9, Abdul Subhan Khan, PW-10,
Bashir Ahmad Mir, PW-11, Mushtaq Ahmad Tramboo, PW-12,
Gulam Mohd, PW-13, Constable Manzoor Ahmad, PW-14, SG Ali
Mohd, PW-15, Mohd Abdullah,PW-16, Constable Javed Ahmad ,
PW-17, Constable Feroz Ahmad, PW-18, Constable Reyaz Ahmad,
PW-19, Doctor Suhail Ahmad CMO, PW-20, Abdul Gai Bhat
Incharge FSL Mobile Unit, PW-21, Shri Nazir Ahmad Naibb
Tehsildar, PW-22, Sheikh Mohd Sultan Patwari, PW-23, Doctor
Shafkat Nazir, PW-24, Abdul Hamid, PW-25, HC Abdu Rashid
Chowdary, PW-26, Sajad Ahmad Shah, PW-27, Mohd Imram Shah,
PW-28, Shri S. S. Baisoya, PW-29, Hakeem Abdul Rashid FSL, PW-
30, Shri Feroz Ahmad SI and PW-31, Inspector Mohd Shafiq.
4. After the prosecution evidence was closed, the case was posted for
recording the statement of the accused as envisaged under section 342
Cr.P.C. The accused in this statement denied the occurrence and the
case was posted for advancing arguments in terms of Section 273
Cr.P.C. The trial Court directed that it was not a case of no evidence
and asked the accused to produce his evidence in defence. The
accused produced one evidence in his defence and accordingly, the
case was posted for advance arguments. On the culmination of the
trial, the accused were acquitted.
5. The appellant assails the judgment dated 14.05.2016, inter alia, on the
grounds that the judgment is against the facts, law and canons of
justice; that the trial court has not applied its mind to the facts and
circumstances of the case; that the trial court while acquitting the
CRAA No. 19/2017
accused has failed to appreciate the evidence in the proper
perspective; that the witnesses of the prosecution have proved that the
accused had role to play in the commission of the crime imputed to
them; that the judgment has been passed on surmises and conjectures;
that it is a case of evidence and the trial court has failed to appreciate
the law and the facts; that the judgment impugned is not sustainable in
the eyes of law and, therefore, the same is liable to be set aside.
6. We have heard the arguments advanced at the bar and the material on
record has also been perused by us.
7. Mr. Mohsin Qadiri, learned Sr. AAG, submits that the trial court has
not properly appreciated the evidence produced by prosecution in
support of charges framed against the accused. He further submits that
the trial court has misdirected itself while appreciating the evidence
and recording the findings holding that the prosecution has failed to
prove the charges against the accused causing miscarriage of justice.
He further submits that there is sufficient evidence on record to prove
the charges against the accused, therefore, order of acquittal is
required to be reversed.
8. On the other hand, learned counsel for the respondents submits that
the finding of trial court does not call for any interference as the trial
court has properly appreciated the evidence. He further submits that
there is no sufficient evidence to which the trial court could have
recorded the order of conviction against the accused. The charges
framed against the accused on the basis of evidence and proper
appreciation have failed to prove the charges. As there was no
CRAA No. 19/2017
sufficient evidence, therefore, the order of acquittal recorded by the
trial court does not call for interference.
9. At the outset it will be of essence to evaluate the relevant excerpts of
the judgment of the trial court that have a bearing on this case and
these are reproduced herein below verbatim et literatim:
―The circumstances on which the prosecution relies upon to prove
the charges against the accused persons are enumerated herein-
below:-
Motive for the murder
Last seen together of A-2 and deceased.
Call date recorded of the cell phones of the accused persons
and the deceased.
Finger prints of A-1 on the pistol (weapon of offence)
Seizure of car
Disclosure statements of A-1, A-4, A-5, A-6 and A-7 and
recoveries pursuant thereto.
Ballistic export report.
Motive:
PW-5 is the son whereas PW-6 is the daughter of the deceased. PW-
10 is the friend of the deceased. PW-11 is the son-in-law of the
deceased. It is consistently stated by the aforesaid witnesses that the
deceased was a business and also lending money to the peoples. It is
deposed that A-1 and A-2 had business relations with the deceased.
The witnesses have given the instances when the decease lend
money to A-1 and A-2. A-1 in his statement under Section 342 of
Cr.PC stated that he used to borrow money from the deceased but
was also giving him the interest. Though the witnesses stated that
deceased and A-1 and A-2 had business relations with each other but
in the absence of reliable and clinching evidence, it is not proved
that the deceased had lend such a huge amount of money to them.
No documentary evidence in the form of accounts statement or any
other document is formally placed to prove that A-1 and A-2 were
indebted to the deceased. It is highly improbable that any
businessman who had lend such a huge sum of money would not
maintain accounts and would also not obtain security for the money.
In the facts of the case the issuance of the cheque pre-supposes that
A-1 owed such a huge amount to the deceased, therefore, the
documentary evidence was imperative in view of the alleged amount
of the loan.
Adverting to the other aspect of the circumstances. It is the case of
the prosecution that A-2 handed over a cheque bearing number
CRAA No. 19/2017
28799396 for an amount of Rs. 32.70 lacs to the daughter of the
deceased which was recovered from the pocket of the deceased and
was seized accordingly. Except a few instance given by the
witnesses prosecution has not brought any evidence that the
deceased had lend such a huge amount to A-1. First let's address the
fact of delivery of the cheque. As per prosecution story the cheque in
question was handed over by A-2 to the daughter of the deceased.
PW-5 and PW-6 are the son and daughter respectively of the
deceased. They have given a totally contradictory versions of the
circumstance. PW-5 during cross-examination by A-6 and A-7 stated
that A-2 handed over the cheque to him and thereafter he proceeded
towards Gulmarg and get it photographed there. However, PW-6
deposed that A-2 handed over the cheque to the deceased who in
turn handed over to her and thereafter, she along with deceased left
for Gulmarg and get the cheque photocopied at Tangmarg. It is a
material contradiction inter se the PW-5, PW-6 and the prosecution
story. Consequently, the delivery of cheque as alleged in the charge-
sheet becomes doubtful.
Turning to the other aspect of the circumstance. The cheque in
question as per the charge sheet is not part of the file. It is also not
expressly stated in the charge sheet that the same has been sent for
handwriting expert opinion. However, it is stated in the challan that
the handwriting and specimen signatures of PW-8 Bilal Rather and
A-1 and A-2 besides the admitted handwriting of A-2 were obtained
in presence of magistrate and same was send to FSL, Srinagar for
expert opinion and till date no opinion was received and same will
be filed if and when received. It along with mobile 2 phones and an
identity card is shown as recovered from the search of the deceased
vide seizure memo marked as EXTP-16/1. As per practice prevalent
in the State the items shown in the seizure memo remains in the
malkhana of the prosecution unless the court direct so otherwise.
Prosecution failed to produce the cheque in question when asked so.
Sp. PP argued that the cheque was made part of the file. In this
context he referred to the statements of PW-14, PW-16 and PW-17.
Though PW-16 and PW-17, marked the seizure memo but did not
mark the cheque or identified the same. I have gone through the
statements of PW-14, PW-16 and PW-17. Though PW-16 and PW-
17 marked the seizure memo but did not mark the cheque or
identified the same. I have gone through the statements of the said
witnesses but none of the witness deposed with respect to the said
cheque. The cheque was not shown to any of the witnesses during
trial. PW-5 has specifically stated that the cheque is not shown to
him in the court. It could have been shown to the concern witnesses
had the same was part of the file. Prosecution has marked the
material objects but no such effort was made to mark the same
particularly when it was an important piece of evidence. Sp. PP
CRAA No. 19/2017
could not point out any order which may suggest that it was made
part of the file. No application is in the file which may suggest that
the prosecution sought permission to place it on the record. In view
of this the claim of the prosecution that it was made part of the file is
unacceptable. Irresistible conclusion is that the cheque remained in
the malkhana of the prosecution and it washed away along with call
data details documents in the floods of September 2014.
Even if we proceed on the assumption that the cheque is part of the
file. It would make no difference for the prosecution. As per the oral
evidence of PW-5 and PW-6, it was for an amount of Rs. 32.70 lacs
issued in favour of Iqbal General Store. As per prosecution case the
cheque has been taken from the cheque book of PW-8 who during
cross-examination stated that he had not reported to the police about
the missing cheque. He had never taken the cheque book in the bank
but had taken the cheque book on the day when the cheque was
stolen. He also stated that the cheque book was put in safe locker
and the keys of the same remains with both of them. It is wrong that
cheque leaf was taken by his brother. It is not explained as to how
the cheque came in possession of A-1 or A-2. No allegation of theft
has been made against any of the accused person. PW-8 had not
lodged any complaint to the police in this regard. It looks
improbable that a person would remain silent in case of theft of a
cheque from the cheque book and would not report either to the bank
concern or to the police station concern. In such circumstances the
cheque attributed to the A-1 becomes doubtful.
Turning to yet another aspect of the circumstance. Prosecution has
not brought any evidence to prove that the cheque is in the
handwriting of A-1 or it bears his signature. Though as per the
charge sheet the handwriting opinion was sought and awaited at the
time of presentation of charge sheet but like cheque it was not made
part of the record. Sr. PP argued that it was obtained and placed on
the record. Again assuming that the opinion was obtained from the
FSL and it was in favour of the prosecution, still it has no help for
the prosecution case inasmuch as handwriting expert is not examined
by the prosecution in connection with the cheque. It is trite that the
science of handwriting is not a perfect science just as the science of
finger prints. The marker of the report regarding handwriting has to
appear as a witness for the proof of the contents of the report.
Viewed so, though it is proved that the deceased and A-1 and A-2
had business relations but it is not proved beyond all reasonable
doubts that the accused were deeply indebted to him and in order to
discharge the liability A-1 gave a fraudulent cheque to him.
Consequently, the motive as alleged by the prosecution is not proved
beyond all reasonable doubts.
Last seen together of A-2 and deceased:
CRAA No. 19/2017
Sp. PP argued that the last seen together of the deceased with A-2 at
Sopore corroborated but the call data record showing the tower
locations of the accused near the place of occurrence is sufficient to
prove this circumstances. Defence counsel while controverting the
argument argued that the facts of the case seen from any angle
doesn't fulfils the requirements of the law as held by the Apex Court
in number of cases. Let's advert to it, it is trite that the ‖Last seen‖
circumstance per se not sufficient for conviction. The last seen
evidence should be to the effect that accused and deceased were last
seen together around the place and time the dead body was
recovered. It is, therefore, incumbent on the prosecution to prove
that accused and deceased were last seen together around the place
where the occurrence took place or the dead body was found. In
order to connect the accused with the murder of the deceased based
on the circumstances that the accused person A-2 was last seen with
deceased when they, were alive. The law laid down by the Hon'ble
Apex Court on this point is that in order to establish the crime of the
murder against the accused persons based on the circumstance of last
seen, the prosecution has to prove that the time gap between last
seen and murder must be so proximate and so close that there should
not be any possibility of drawing any inference of innocence of the
accused persons and there should not be any possibility of meeting
of anyone else with the deceased in between. In other words, there
should be no other possibility than the accused persons and they
alone have committed the heinous crime. The Apex Court in the case
of Bodhraj alias Bodha and others v. State of Jammu and Kashmir,
(2002) 8 SCC 45 has held that the last seen theory comes into play
where the time gap between the point of time when the accused and
the deceased were seen last alive and when the deceased is found
dead is so small that possibility of any person other than the accused
being the author of the crime become impossible. The Apex Court
further held that it would hazardous to come to a conclusion of guilt
in cases where there is no other positive evidence to conclude that
the accused and the deceased were last seen together. Similarly, the
Apex Court in the case of Subash Chand v. State of Rajasthan
(2002) 1SCC 702 has specifically held that last seen together must
be near about the date and time of the incident. Merely on the basis
of last seen accused persons cannot be held guilty. Based on these
principles now court shall proceed to examined the evidence in the
present case.
As per the prosecution case A-2 and the deceased from Sopore left
for Srinagar in a Sumo and reached at 12:16 hours a Regal Chowk,
Srinagar, PW-5 in his statement deposed that he stated to the police
in Police Control Room that deceased was taken to Srinagar by A-1
and A-2. However, the statement of PW-5 to this extent is denied by
PW-30 who stated that witness has made the wrong statemen. PW-
CRAA No. 19/2017
26 and PW-27 are the other witnesses who deposed on this
circumstance. According to PW-26 prior to the occurrence he was
working with the deceased as a salesman and he spotted the
deceased and the accused persons in a Sumo of Sopore at about 9/10
AM. However, the witness has not given the name of the particular
accused found in the company of the deceased in the Sumo. The
statement of the witness as such, is vague and generalized. It is apt to
note that the witness remained silent for two months of the
occurrence and made his statement to the police after 56 days. The
witness also stated that he did not disclose this fact to any person. He
further stated that he also did not state this fact before the family
members of the deceased and the Magistrate. PW-27 also stated that
deceased and A-2 boarded the Sumo in which the passengers were
also sitting. In his cross-examination witness stated that he went to
the house of the deceased. The police came at the house of the
deceased but he did not state anything to the police. Even thereafter
he did not state to the police. It is further stated by the witness that
the police frequently visited the house of the deceased but he did not
state this fact to the police. Finally the witness stated that he is
stating for the first time that the deceased had boarded the Sumo
along with A-2. The conduct of the PW-26 and PW-27 in not stating
to the police despite having the opportunities appears to be unusual.
The evidence on this circumstance is not reliable and clinching.
Even if we proceed on the assumption that the deceased and A-2
boarded the Sumo vehicle. As per the witnesses they boarded the
Sumo at Sopore. It can be judicially noticed that the distance
between Sopore and Srinagar is not less than 50 KM. PW-26 and
PW-27 deposed that passengers were already boarded in the Sumo
vehicle. Its corollary is that the vehicle was not specially engaged by
the accused. It was a public transport vehicle. Apart from the
aforesaid evidence, the prosecution has not brought any admissible
evidence to prove that A-2 and deceased were last seen in the city of
Srinagar or near the place of occurrence prior to the occurrence. Sp.
PP argued that the call date record establishes the presence of A-1 to
A-3 near the place of occurrence on the basis of stated by this court
in Navjot Sandhu case AIR 2005 SC 3820, does not lay down the
correct legal position. It requires to be overruled and we do so. An
electronic record by way of secondary evidence shall not be
admitted in evidence unless the requirements under Section 65B are
satisfied. Thus, in the case of CD, VCD, chip, the same shall be
accompanied by the certificate in terms of Section 65B obtained at
the time of taking the document, without which, the secondary
evidence pertaining to the electronic record, is inadmissible. The
appellant admittedly has not produced any certificate in terms of
Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12,
CRAA No. 19/2017
P13, P15, P20 and P22. Therefore, the same cannot be admitted in
evidence.
Assuming but not deciding the admissibility of the call details. The
prosecution has not brought any evidence to prove that the accused
persons A-1 to A-3 are the subscribers of the particular mobile
phones. The mere seizure of the mobile phones is insufficient to
prove this fact. In its absence, the call details have no relevancy and
importance. Adverting to yet another aspect of the circumstance.
Assuming that the call details are proved to be inter se the accused
persons and between the deceased and accused persons. In the
considered opinion of the court the call date record is not the proof
of the fact that the subscriber of the particular phone number was
present at the particular place at the particular time. The phone
containing the particular number may be in the possession of any
other person than the accused person at the particular point of time
and the accused may be present at some other place. There can be
number of reasons for that. As such, any other hypothesis can't be
ruled out. At the most it can be the corroboratory piece of evidence.
It is not the substantive piece of evidence. In the absence of
substantive evidence that accused persons were seen near the place
of occurrence, the call details are insufficient to prove it. It is apt to
note that the prosecution has not adduced any evidence to prove that
A-1 to A-4 were found near place of occurrence. The whole thrust of
the prosecution case is upon the call date records which for the
aforesaid reasons has been ignored from consideration. In view of
the aforesaid reasons this circumstances is also missing from the
chain of links.
Finger prints of A-1 on the pistol (weapon of offence):
It is also the case of the prosecution that the finger impressions of
accused A-1 to A-3 were taken through PW-20 and sent to FSL for
scientific examination. Surprisingly, the finger impressions of A-4
who as per prosecution story fired upon the deceased were not taken.
In such circumstances the importance of the FSL report is to be seen.
On examination it was found that finger impressions on the pistol
has similarity with the finger impressions of A-1 as deposed by PW-
29 vide report marked as EXTP-29. PW-12, PW-14, PW-15 and
PW-18 are the witnesses who were associated with the recovery of
the pistol. As per their statements the pistol was recovered on
10.06.2011 in the evening. However, as per PW-20 he was called in
the police station Kothibagh where he was shown a seized pistol for
obtaining the finger impressions. The witness stated that on that day
at 12 noon the pistol was on the table and he lifted the finger
impressions. He further stated that the I.O recorded his statement on
10.06.2011 at 12 noon. PW-20 is the important witness inasmuch as
he is a government official called by the concerned police for the
aforesaid purpose. In view of the statements of aforesaid witnesses
CRAA No. 19/2017
associated with the recovery of the pistol and the statement made by
PW-20, a material contradiction has arose which raises doubt over
the pistol which was shown to PW-20 for obtaining the finger
impressions. In case the witnesses to the recovery of the pistol
including the I.O are believed then the statement of PW-20 who
stated that he took the finder impressions on 10.06.2011 at 12 noon
becomes highly improbable and un-believable. Accordingly, the
statement of PW-20 becomes doubtful and consequent finger
impressions opinion doubtful. Moreover, PW-30 has stated that PW-
20 has made a wrong statement. In the considered opinion of the
court PW-30 is also not correct in his statement inasmuch as the
statement of PW-20 in terms of Section 161 of Cr.PC was recorded
on that day at 12 noon as stated by the witness and as reveals from
the record but PW-30 again tried to justify it by stating that it was a
clerical mistake which is not acceptable. From any angle either by
believing the I.O and other witnesses or by relying upon PW-20 the
fact of obtaining finger impressions from the pistol is doubtful. A-1
in his statement under Section 342 Cr.PC stated that on 10.06.2011
before 12 noon police asked the accused to touch the pistol. Keeping
in view the inconsistency and contradictions in the time of recovery
of pistol, the circumstance that the pistol was having the finger
impressions of A-1 becomes doubtful and unworthy of reliance.
Adverting to the other aspect of the circumstance. As per the
prosecution story A-1 handed over the pistol to A-4 who shot the
deceased at Regal Chowk, Srinagar. It is not the prosecution case
that A-4 again handed over the pistol to A-1. In such circumstances
it remained a mystery as how the pistol again came in the custody of
A-1. This link is as such missing from the chain of the
circumstances.
Seizure of car:
It is the case of the prosecution that Alto Car bearing registration
No.JK05A-5721 seized vide seizure memo EXTP-5/1 was used by
A-3 and A-4 on day of occurrence for the commission of the
offence. It is not the case of the prosecution that either the deceased
was taken in the said car or it was seen at the place of occurrence by
any witness or the offence was committed inside the vehicle. It is
also not proved by the prosecution that the car is owned by A-1 as
claimed in the challan. The only evidence to connect the car with the
commission of offence is that PW-5 witnessed A-1 using the same at
Sopore at the time when the deceased had already left for Srinagar in
Sumo. In the considered opinion of the court the mere seizure of the
car in the facts of the case, is not by itself an incriminating
circumstance in this case.
Disclosure statements of A-1, A-4, A-5, A-6 and A-7 and
recoveries pursuant thereto:
CRAA No. 19/2017
First law on the subject needs to be noticed. In the hereinafter
judgments of the Apex Court the requirements of Section 27 of the
Evidence Act and the extent of statement admissible is stated. In
Amitsingh Bhikamsing Thakur v. State of Maharashtra (2007) 2 SCC
310 it is held as:
―29. The various requirements of the Section 27 of Evidence Act can
be summed up as follows:
The fact of which evidence is sought to be given must be
relevant to the issue. It must be borne in mind that the provision has
nothing to do with question of relevancy. The relevancy of the fact
discovered must be established according to the prescriptions
relating to relevancy of other evidence connecting it with the crime
in order to make the fact discovered admissible.
The fact must have been discovered.
The discovery must have been in consequence of some information
received from the accused and not by accused's own act.
The persons giving the information must be accused of any offence.
He must be in the custody of a police officer.
The discovery of a fact in consequence of information received from
an accused in custody must be deposed to.
Thereupon only that portion of the information which relates
distinctly or strictly to the fact discovered can be proved. The rest is
inadmissible.
In Jaffar Hussain Dastagir v. State of Maharashtra AIR 1970 SC
1934, the Apex Court reiterated the law laid down by Privy council
stated in Puluquri Kotayya's case as,
―6. The section was considered by the Judicial Committee of the
Privy Counsel in Puluquri Kotaya v. King Emperor, 74 Ind App
65. A question there arose as to what part of a statement of the
accused leading to the recovery of a knife in a murder case was
admissible in evidence. The statement read:
―About 14 days ago, I Kotayya and people of my party lay
in wait for Sivayya and others at about sunset time at the
corner of Pulipad tank. We all beat Boddupati China
Sivayya and Subbayya to death. The remaining persons
Palayya, Kotayya and Narayana ran away.
DondapatiRamayya who was in our party received blows
on his hands. He had a spear in his hands. He gave it to me
then. I hid it and my stick in the rick of Venkatanarasu in
the village. I will show if you come. We did all this at the
instigation of Pulukuri Kotayya.‖
The Board held hat the whole of the statement except the passage ―I
hid it (a spear) and my stick in the rick of Venkatanarasu in the
village. I will show if you come‖ was inadmissible. Holding that the
extent of information admissible must depend on the exact nature of
the fact discovered to which such information was required to relate
the Judicial Committee pointed out that ―the fact discovered
CRAA No. 19/2017
embraces the place from which the object is produced and the
knowledge of the accused as to this, and the information given must
relate distinctly to the fact.‖ The Board was careful to observe that
―information as to past user, or the past history of the object
produced was not related to its discovery in the setting in which it
was discovered.‖
With regard to Section 27 of the Act, what is important is discovery
of the material object at the disclosure of the accused but such
disclosure alone would not automatically lead to the conclusion that
the offence was also committed by the accused. In fact, therefore,
burden lies on the prosecution to establish a close link between
discovery of the material objects and its use in the commission of the
offence. What is admissible under Section 27 of the Act is the
information leading to discovery and not any opinion formed on it
by the prosecution. (See Mustkeem v. State of Raj. AIR 2011 SC
2769).
In Balkar Singh v. State of Haryana (2015) 2 SCC 746 the sixth
circumstance was Balkar Singh Chudiala procuring the car from
Swaran Singh and the gun from Dalbir Singh, and handing over both
to Gurdev Singh. Both the circumstances were found to be without
supporting evidence as Swaran Singh did not support the
prosecution. Recovery of Dalbir Sing's gun from Gurdev Singh,
through established did not prove that Gurdev Singh had been given
the gun by Balkar Singh Chudiala. The part of Gurdev Singh's
disclosure statement that he got the gun from Balkar Chudiala could
not be proved in this manner.
Before appraisal of the evidence on the aforesaid circumstance, it
would be apt to note that in all the disclosure statements and the
recoveries purportedly made pursuant thereof, police had not
associated any independent witness. A-14 Ali Mohammad Khan
who is a police official is associated with all the disclosure
statements and consequent recovery memos. Similarly A-16 Javaid
Ahmad who is also the police official is associated with all the
disclosure statements and recovery memos except that of A-1. It is
not the prosecution case that the disclosure statements and the
recoveries from all the accused persons were made on the same day
and at the same place. The disclosure statements of A-1, A-4, A-5,
A-6 and A-7 were made on 10.06.2011, 27.07.2011, 28.06.2011,
30.07.2011 and 30.07.2011 respectively. Similarly, the recovery
memos were also prepared on different dates. Though it is not the
requirement of law that for such purpose independent witness shall
be associated but for all fairness particularly for the recoveries the
independent witnesses could have been easily associated. It raises
doubt over the regularity of the investigation. It is not the case of the
prosecution that no public witness was available at the time of the
recoveries or nobody was willing to stood as the witness.
CRAA No. 19/2017
Let's take the disclosure statement made by each of the accused and
recovery made pursuant thereof one by one.
A-1 Parvaiz Ahmad Tantray:
A-1 purportedly made the disclosure statement as follows:
―jis pistol se mainemasami Mohd. Afzal Kha S/o Samander Khan ko
maine mara wo apne naye zere takmil makaan ki pehli manzil karma
janab-e-magrib zere samaan tamerati me chhupa ke rakha huya hai
nishandeyi karke bramad karwasakta hu‖
Sp. PP argued that five witnesses associated with the recovery of the
pistol, live cartridges and the magazine consistently proved the
seizure of the same and the accused persons can't escape from it. Per
contra defence counsel forcefully challenged the same particularly
on the ground that no independent witness has been associated
despite the fact the same could have been easily procured inasmuch
the alleged place of recovery is surrounded by many houses as stated
by the prosecution witnesses. Ld. Counsel argued that all the
witnesses are police officials whereas PW-5 is the son of the
deceased. PW-12, PW-14, PW-15, PW-18 and PW-Manzoor Ahmad
Khan have been associated with the recovery made pursuant to the
disclosure statement made by A-1. According to PW-12 A-1 made
the disclosure statement on 10.06.2011 in the evening. Thereafter
they left for Rebon Sopore and reached at 10/11 PM and returned
back in the police station at 11 PM. It is stated by the witness that he
put his signature on the recovery memo at 11.30 PM. Its collorary is
that the witness did not put his signature on the seizure memo at the
time of effecting the recovery on the spot. If the recovery memos
were prepare at the police station itself then the same would lose its
sanctity as held in Varun Chaudhary v. State of Rajasthan reported
in AIR 2011 SC 72 and in Mustkeem v. State of Raj. AIR 2011 SC.
PW-14 stated that he along with other went for recovery but he did
not enter inside the house rather remained outside. It is stated that
I.O recovered the pistol. The statement of PW-14 has not legal value
inasmuch as the witness did not witness the recovery for the reasons
that he remain outside the house, i.e., the place of recovery. The
statement of PW-14, therefore, also has no help for the prosecution
case. PW-15 is another witness associated with the recovery.
According to him they left for Rebon Sopore at 7 PM and reached
there at 9 PM. He also stated that 5/7 civilians were called by the I.O
who put their signatures on recovery memo which fact is denied by
the I.O. In case the witness is believed it mean the recovery memo
on which the civilian put their signatures has been withheld by the I.
O. In case the I. O. is believed it would make the statement of PW-
15 doubtful. Similarly, PW-18 also stated that 2/3 civilians were
called on spot who were taken inside the place of recovery. The
witness also deposed that he remained outside and had not gone
inside. He further stated that I. O showed him the recovery on
CRAA No. 19/2017
11.06.2011 because of darkness. Its corollary is that this witness like
PW-14 did not witness the recovery for the reasons that they
remained outside the house. As per PW-30 he went for recovery and
reached Sopore at 1.20 PM and at Rebon at 1.40 PM. PW-30 has
contradicted all other witnesses who deposed that the recovery was
affected in the evening or in the night. PW-30 stated that statement
of the witnesses to this extent are wrong. Let's proceed on the
version of PW-30. It was the day time when he reached at the place
of recovery. As per PW-5 the place of recovery of pistol is
surrounded by 8 houses. Admittedly no independent witness was
called to witness such a serious and important aspect of the case.
PW-30 preferred the same set of police officials as the witnesses
despite the fact that PW-5 stated that he said the police to call the
civilian but he was told that they cannot give the statement later on.
It is not the case of the prosecution that no public witness was
available at the time of the recoveries or nobody was willing to stood
as the witness. In this context the Supreme Court in Sahib Singh v.
State of Punjab (1996) 11 SCC 685 stated the las as:
―6.Having gone through the record we find much substance in each
of the above contentions. Before conducting a search the
concerned police officer is required to call upon some independent
and respectable people of the locality to witness the search. In a
given case it may so happen that no such person is available or,
even if available, is not willing to be a party to such search. It may
also be that after joining the search, such persons later on turn
hostile. In any of these eventualities the evidence of the police
officers who conducted the search cannot be disbelieved solely on
the ground that no independent and respectable witness was
examined to prove the search but if it is found - as in the present
case - that no attempt was even made by the concerned police
officer to join with him some persons of the locality who were
admittedly available to witness the recovery, it would affect the
weight of evidence of the Police Officer, though not its
admissibility. We next find from the record that the arms and
ammunitions allegedly recovered from the appellant and seized
were not packed and sealed. In Amarjit Singh Vs. State of Punjab
1995 Supp. (3) SCC 217 this Court has observed that non-sealing
of the revolver at the spot is a serious infirmity because the
possibility of tampering with the weapon cannot be ruled out.
From the record we further find that there is no evidence to
indicate with whom the revolver was after its seizure by P.W.3 till
it was sent to the Arms Expert for testing through constable Baita
Singh. This missing link also weakens the prosecution case. For all
these infirmities we are of the view. that the appellant is entitled to
the benefit of reasonable doubt.‖
It is the case of he prosecution that in furtherance of criminal
conspiracy A-4 fired upon the deceased with the pistol allegedly
recovered in pursuance to he disclosure statement made by A-1. PW-
CRAA No. 19/2017
30 (I.O) in his statement also stated that A-4 inflicted bullet shot
upon the deceased. It is as such, evident that A-1 did not fire upon
the deceased with the pistol. IN case A-4 possessed the pistol and
fired upon the deceased, there covery of pistol from A-1 becomes
doubtful. No investigation has been conducted on this aspect of the
case to explain as to how it came in the possession of A-1. In view
of this the recovery of pistol from A-1 is shrouded with mystery. It is
apt to note that in both the disclosure statements of A-1 and A-4 it is
stated that he fired upon the deceased. This court can't made out new
case for the prosecution that since the pistol was recovered from A-
1, therefore, the inference that he fired upon the deceased has to be
drawn. It is trite that by introducing or adding a new story in a
criminal case which not only adversely affects or destroys the
prosecution version and consequently benefit goes in favour of the
accused. It would be profitable to refer to paragraph no. 176 of the
Supreme Court decision reported in Ram Narain Poply v. Central
Bureau of Investigation (2003) 3 SCC, 641, wherein it is held as:
―176. Further, the evidence led by the prosecution itself destroys
the so-called conspiracy hatched in April/May 1989 because the
reply of A1 as stated by PW23 in the meeting was limited to the
extent that MUL could not deal with or involve the brokers and
that he would look into any good proposals if A5 does not come
into the picture. From this statement, no inference can be drawn
that there was any conspiracy to misappropriate MUL funds or
commit fraud or to commit any illegal act Further, for the
prosecution version that Al and A2 entered into a criminal
conspiracy with other accused between January 1991 to May 1991
as stated in the FIR (which was recorded after preliminary inquiry)
and in the charge-sheet (virtually filed after more than two years of
the preliminary inquiry), no attempt is made to prove the same.
Subsequently developed prosecution version that conspiracy was
hatched in April/May, 1989 on the basis of approver's evidence
appears to be unreliable and baseless.‖
For the aforesaid reasons, the prosecution evidence on this aspect of
the circumstance is doubtful. This circumstance, therefore, also
snapped from the claim of circumstances.
A-6 Ajaz Ahmad Bhat:
A-6 Purportedly made the disclosure statement as follows:
―Maine Parvez Ahmed ko 8 daane kartoos chini sakhat de
diye aur majid 2 daane kartoos Zeawan me kouth ke nazdik
jhadiyon me chhupa ke rekhein hain jinki mam nishandayi
karke bramad karwa sakta hu.‖
As per prosecution story in pursuance to the disclosure statement of
A-6 arms and ammunition as per recovery memo marked as EXTP-
16/8 were recovered on 30.07.2011. Apart from the five rounds other
items are also shown recovered from the accused. Accordingly, A-6
and A-7 were booked for the offence under Section 7/25 of the Arms
CRAA No. 19/2017
Act and were not found involved in the criminal conspiracy of
murder. It is apt to note that A-6 has been shown as working in
armed police (armour) Handwara. PW-25 in his statement deposed
that he has no knowledge who prepared EXTP-16/8 as he was not
present there. He also stated that he was outside the office and was
told to sign it. The testimony of PW-25, therefore, is of no help for
the prosecution inasmuch as he didn't witness the recovery rather
asked to sign it. Apart from it the defence has demolished this part of
the case by examining defence witness who is constable and on the
basis of relevant roznamcha deposed that on 30.07.2011 no police
official of police station Kothibagh entered in the Zeaven complex
and no recovery was affected on that day. It makes the prosecution
version doubtful. Apart from the aforesaid recovery no evidence has
been adduced against the accused.
A-4 Mohd. LatiefParray:
A-4 purportedly made the disclosure statement as follows:
―Maine Parvez Ahmed Tantray ke kehne par Partap Park ke
nazdik Afzal Kashmiri par goli chalayi is kaam ke liye mujhe
10000/- naqdi aur ck cheque mili hai jo maine naidkhai dere
par chhupa ke rakhi hai.‖
In pursuance to the disclosure statement cash amounting Rs. 7000/-
and cheque for Rs. 30,000/- were recovered.
A-5 Irshad Ahmed Bhat:
A-5 purportedly made the disclosure statement as follows:
―Maine jo pistol Parvez Ahmed Tantray ko de diya jo ke
maine Ajaz Ahmed Bhat aur Abdul Hamid Bhat se thik
karwaya tha jiski ivaz me Parray ne mujhe 5000/- rupaiya
diye jo mujhe kharach huye jab ki ek cheque 15000/- rupaiya
ke de diye jo maine apne ghar kulangam me rakhi hai jisko
main bramad karwasakta hu.‖
In pursuance to the disclosure statement a cheque for Rs.15000/- was
recovered.
A-7 Abdul Hamid Bhat:
A-7 purportedly made the disclosure statement as follow:
―Maine Ajaz Ahmed Bhat jo ki police mein kaam karraha hai
ek Chinese pistol ko thik karne ki ivaz 6000/- rapaiya naqdi
liya hai jo maine sandook mein chhupa rakhein hai
nnishandeyi karke bramad karwaskta hu.‖
In pursuance to the disclosure statement cash amounting Rs. 6000/-
was recovered.
In order to avoid repetition the recoveries purportedly made pursuant
to the disclosure statement of A-4, A-5 and A-7 shall be taken up
together for appreciation. The serial numbers of the currency notes
or marks of identification are neither recorded in the disclosure
statement nor in the recovery memos. The articles like Indian
currency notes are of very ordinary kind and could be found with
CRAA No. 19/2017
anybody residing in the country and the witnesses did not point out
any special features or marks of identification on them. The amount
attributable to the accused persons is also not disproportionate that it
may link them with the crime. The amount of money shown
recovered to the accused is a small amount which a common person
may possessed so in routine. It is apt to note that the recovery of the
cash is shown to be made on 28.07.2011 and 30.07.20911, i.e., after
a period of about two months from the date of its alleged delivery by
A-1. It looks highly improbable that a person may not spent this
petty amount in this period of time. In its absence it can't be said that
the currency notes allegedly recovered were the same which were
given by A-1 to A-4 and A-5 and by A-6 to A-7. For the aforesaid
reasons the currency notes cannot be linked with the commission of
the offence.'
The cheques allegedly recovered from A-4 and A--5 are also of no
help for the prosecution case inasmuch as the prosecution has not
brought any evidence to prove that the cheque bears the signature of
A-1. The cheques like aforesaid cheque and call data record are not
in the file as the same got washed away in the flood. There is o
handwriting expert opinion in this regard. Similarly, it is also not
proved by examining the concern bank official that the account
number recorded in the cheques belongs to A-1. Viewed so the
recovery of cheques nowhere connects A-4 and A-5 with the
commission of any offence. Apart from it no substantive evidence
has been brought on record that A-1 gave the aforesaid cheques and
cash to A-4 and A-7 and by A-6 to A-7. This link in the prosecution
case also get snapped.
Ballistic expert opinion:
Sp. PP vehemently argued that the ―ballistic expert opinion is
consistent with the guilt of the accused persons inasmuch the
recovery of the empty cartridge and the pistol is proved beyond
doubt. Defence counsel has put forth a serious challenge to it on the
ground that the safe custody of both items is not proved beyond all
reasonable doubts. Empty cartridge was seized from the place of
occurrence vide seizure memo EXSTP-12. Perusal of the reveals that
the place of number of the seized cartridge is mentioned as 74-11.
However, it is evident from the memo that said number is written
separately in an unusual manner by keeping considerable space from
the other writings. It makes the seizure memo to the extent of
incorporation of number doubtful. On the same day it was sealed and
the seal used for the purpose was kept on the supurdnama of one
Ghulam Hassan Bhat son of Ghulam Rasool Bhat resident of Abi
Guzar vide EXTP-12/4. Surprisingly, the supurdar is neither cited as
the witness nor examined during trial. The supurdar has to ensure the
safe custody of the seal in order to exclude the possibility of
tempering. In its absence the sealing aspect of the case could not be
CRAA No. 19/2017
challenged and tested by the defence on the touchstone of cross-
examination. It is required that the empty cartridge sent for resealing
prior to the recovery of the pistol to obviate any king of doubt in the
prosecution version.
Similarly, the pistol is shown recovered on 10.06.2011 vide seizure
memo EXTP-5. The number of the pistol is mentioned as M.4707.
However, the pistol was not sealed immediately after its seizure or
later on. Evidence on the aspect of the sealing is lacking. As per PW-
5 the pistol along with other items was put in a paper envelop. Its
non-sealing stand corroborated by PW-20 who has deposed that it
was not sealed when he lifted it for obtaining finger impressions. No
doubt the number of the pistol is stated in the seizure memo but in
the fact of the case since it was allegedly used to commit the murder,
its sealing becomes imperative in order to eliminate the chances of
its tempering in the police station particularly when the live cartridge
were also recovered.
The pistol seized on 10.06.2011 was sent for re-sealing to the
executive magistrate on 13.06.2011. when the sealing is ot proved,
its re-sealing is beyond comprehension. Admittedly, the pistol
remained in the police station for 4 days whereas the cartridge
remained there for 8 days. the safe custody of the aforesaid items
becomes questionable. An Explanation from the prosecution about
the place of custody, the person in whose custody it remained during
this period of time and the purpose for keeping it in the police station
becomes imperative in the facts of the case. This circumstance is
inconsistent with the hypothesis of guilt. The Supreme Court on the
aspect of sealing in Amarjit Singh Alias Babbu v. State of Punjab
(1995) Supp 3 SCC 217 held as:
―7. The entire prosecution case, thus, is clouded with number of
infirmities which compel this court not to accept such an unworthy
evidence. These infirmities have been brushed aside by the
designated court by observing that since the model number of the
revolver was noted down , the non-sealing of the revolver or the
handing over of the same to some other police official or a private
person, who has not been examined are of no consequence. We are
unable to agree and subscribe to this view in a case of this nature.
The non-sealing of the revolver at the spot is a serious infirmity
because the possibility of tampering with the weapon cannot be
ruled out. The report of the Public Witness-4 that the weapon is
capable of being fired is insignificant since it cannot be said with
certainty as to what was the condition of the weapon at the time of
the recovery, apart from theevidence of Public Witness 4 that he
did not test-fire the revolver‖.
Viewed so in the facts and the circumstances of the case, the ballistic
expert opinion that the empty cartridge was fired from the pistol is
not proved beyond all reasonable doubt‖.
CRAA No. 19/2017
10. The core issue that arises for consideration in this case, is whether
while recording the judgment of acquittal, the prosecution evidence
has been properly appreciated in right and proper perspective. The
trial court has recorded the entire evidence in its breadth and length in
the impugned judgment and the same does not require to be repeated
and reiteratedhere again. The trial court, as is clear from the impugned
judgment, has, after taking into consideration the entire evidence
adduced by the prosecution, come to the conclusion that the accused
have not committed the crime imputed to them.
11. The well settled law is that the function of the Court in a criminal trial
is to find out whether a person arraigned before it as accused is guilty
of the offence with which he is charged. For this purpose, the Court
scans the material on record to find out whether there is any credible,
reliable and trustworthy evidence on the basis of which it is possible
to convict the accused and to hold that he is guilty of the offence with
which he is charged. The burden to prove the ingredients of the
offence is always on the prosecution and it never shifts to the accused.
12. Looking at the instant case from the perspective of what has been
stated above, is that the accused herein this case have been arraigned
on a charge of killing of deceased by hatching a conspiracy on
06.06.2011. Accused nos. 1, 3 and 4 are alleged to have left from
Sopore along with arms and ammunition in a vehicle bearing
registration No. JK05A-5721 and accused no.4 at the instance of
accused no. 2 fired through Chinese Pistol at blank range upon the
deceased's head who sustained critical injuries and later on
CRAA No. 19/2017
succumbed to the same. The accused nos.1 to 4 ran away in the
vehicle from the spot. The sum and substance of the statement
narrated in the resume of the evidence of the witnesses requires to be
narrated here. It is the case of the prosecution that in furtherance of
criminal conspiracy accused no.4 fired upon the deceased with the
pistol allegedly recovered in pursuance of the disclosure statement
made by accused no.1. PW-30 (I.O.) in his statement also stated that
accused no.4 inflicted bullet shot upon the deceased. It is, as such,
evident that accused no.1 did not fire upon the deceased with the
pistol. In case accused no.1 possessed the pistol and fired upon the
deceased, the recovery of pistol from accused no.1 becomes doubtful.
No investigation has been conducted on this aspect of the case to
explain as to how it came in the possession of accused no.1. In view
of this, the recovery of pistol from accused no.1 is shrouded with
mystery. It is apt to note that in both the disclosure statements of
accused nos.1&4, it is stated that he fired upon the deceased. This
court cannot make out a new case for the prosecution that since the
pistol was recovered from accused no.1, therefore, the inference that
he fired upon the deceased has to be drawn. It is trite that by
introducing or adding a new story in a criminal case which not only
adversely affects or destroys the prosecution version but consequently
benefit goes in favour of the accused.
13. Testing the prosecution case on the touchstone of the evidence of the
aforesaid witnesses, the impugned judgment is based on the law,
reason and the logic. It does not call for any interference. All the
CRAA No. 19/2017
witnesses as discussed above, have not been emphatic in stating that
the accused were the architect and the author of the crime. The
judicial precedent reported in the case of Prithipal Singh Vs. State of
Punjab, 2012 (1) SCC 10, assumes significance on that count. There it
has been held as follows: -
―This court has consistently held that as a general rule the court
can and may act on the testimony of a single witness provided
he is wholly reliable. There is no legal impediment in
acquitting a person on the sole testimony of a single witness.
But if there are doubts about the testimony, the court will insist
on corroboration. In fact, it is not the number or the quantity,
but the quality that is material. The time honoured principle is
that evidence has to be weighed and not counted. The test is
whether the evidence has a ring of truth, is cogent, credible and
trustworthy or otherwise. The legal system has laid emphases
on value, weight and quality of evidence, rather than on
quantity, multiplicity or plurality of witnesses. It is, therefore,
open to a competent court to fully and completely rely on a
solitary witness and record acquittal. Conversely, it may acquit
the accused in spite of testimony of several witnesses if it is not
satisfied about the quality of evidence...‖
14. The law that has been settled in the aforesaid judgement is that as a
general rule the court can and may act on the testimony of a single
witness provided he is wholly reliable and there is no legal
impediment in acquitting a person on the sole testimony of a single
witness, but if there are doubts about the testimony, the court will
insist on corroboration. It is not number or quantity, but quality that is
material and time-honoured principle is that evidence has to be
weighed and not counted. So, the test is whether the evidence has a
ring of truth, is cogent, credible and trustworthy or otherwise. The
legal system has laid emphases on value, weight and quality of
evidence, rather than on quantity, multiplicity or plurality of
witnesses. Thus it is open to a competent court to fully and completely
CRAA No. 19/2017
rely on a solitary witness and record acquittal and conversely it may
acquit the accused in spite of testimony of several witnesses if it is not
satisfied about the quality of evidence.
15. Applying the ratio of the law laid down, as aforesaid, to the facts of
the instant case, the statements of witnesses discussed above are not
sufficient to convict the accused. There is infirmity in their statements
that render them weak, fragile, incoherent or improbable.
16. The argument of the counsel for accused that there are discrepancies
in the statements of the witnesses is an argument when tested on the
touchstone of the instant case. Prosecution has failed in discharging its
burden to prove that the accused have committed the crime imputed to
them. There is no merit in this appeal. It entails dismissal as a
consequence of which the same is dismissed and the judgment of
acquittal recorded by the trial court is maintained and upheld.
17. The record of the trial court, if summoned, be sent down along with a
copy of this judgment.
(MOHAN LAL) (VINOD CHATTERJI KOUL)
JUDGE JUDGE
SRINAGAR
09.06.2023
Manzoor
Whether approved for reporting? Yes/No
