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Judgment
Virender Singh, J.—Appellant-Mohd. Amin Dar stands convicted u/s 302 of Ranbir Penal Code (RPC) and Section 27 of Arms Act vide
judgment dated 20.08.2002 passed by Additional Sessions Judge, Ramban. He has been sentenced to undergo life imprisonment u/s 302 RPC
and seven years rigorous imprisonment u/s 27 of Arms Act. Both the sentences, however, have been ordered to run concurrently. Aggrieved of the
judgment of conviction/sentence, he has preferred Cr. Appeal No. 05/2002. The sentence imposed upon him has been sent to this Court by the
trial Court for confirmation. vide Confirmation No. 04/2002. Hence, Cr. Appeal No. 05/2002 and Confirmation No. 04/2002 have been clubbed
together for disposal.
It needs to be mentioned here that three other coaccused of the Appellant namely Nissar Ahmed alias Tunda, Abdul Latif alias Tufail and
Ghulam Mohi-ud-Din were also booked in the present case. Nissar Ahmed and Abdul Latif could not be nabbed by the police and, as such,
proceedings u/s 512 Code of Criminal Procedure (Svt.1989) initiated against them. Ghulam Mohi-ud-Din, however, died in an encounter.
Therefore, it is the Appellant only, who faced the trial.
Another aspect, which needs to be mentioned here is that as per prosecution case, deceased was hit by bullet shots fired from AK-47 allegedly
used by the Appellant, for which, he stands convicted and sentenced u/s 27 of Arms Act. Since it was a prohibited arm as defined in Section 2(i)
of the Arms Act, usage thereof if results in death of any person, calls for death penalty only as provided u/s 27(3) of the Arms Act. This Court,
therefore, prima facie, found that the learned trial Court has committed a legal error in imposing life imprisonment upon the Appellant and as such,
vide order dated 20.02.2009 issued a notice to him as to why he be not awarded the death penalty in the event of conviction being upheld by this
Court. Since the Appellant was languishing in jail, the notice was served upon him and after its due service, Mr. O.P. Thakur, who is otherwise
representing him, has put in his appearance. The service of the said notice upon the Appellant is, thus, complete. One more fact, which requires
mentioning, is that the Appellant was charged u/s 302/120-A RPC read with Section 34 RPC and Section 27 of Arms Act. However, no finding
has been returned by the trial Court with regard to the charge of Section 120-A RPC. The Appellant simply stands convicted for the substantive
offence of Section 302 RPC alongwith suffering conviction u/s 27 of Arms Act.
At the very outset, we show our concern in the delay caused in deciding the instant appeal, which is of year 2002. Undoubtedly it has gone very
old age-wise.
Primarily, it is on account of judicial wrangles However, at some stage, delay is also attributable to the Appellant as well. The trial Court also
took a considerable period of 6-7 years in deciding the case. This is how the Appellant is in jail for last 14 years. This is just for reference, which
otherwise has no effect on the merits of the case. Let us now advert to the prosecution case in brief: Occurrence is of 10.10.1995. Place is village
Nagam (Tehsil Banihal) falling within the jurisdiction of Police. Station Banihal. Deceased is one Mastan Ali Sheikh. PW Ahmad Ullah, Chowkidar
of village Nagam, is the first informant of the occurrence. On his oral information, F.I.R. No. 88 of 1995 came to be registered in Police Station
Banihal u/s 302/120-B RPC and Section 3/25 Arms Act by PW Dy.SP Sanaullah, the then SHO of Police Station Banihal. Ahmad Ullah is not an
eye witness to the occurrence. On the information supplied by him to the police, PW Abdul Qayoom ASI, the then Head Constable of Police
Station Banihal, was entrusted with the investigation of the present case, who reached the place of occurrence, prepared the rough site plan of the
occurrence, took the dead body into possession, recovered two empty cartridges of AK-47 from the place of occurrence, completed other
formalities with regard to proceedings u/s 174 Code of Criminal Procedure He recorded the statement of PW Sara Begum-widow of the
deceased, PW Aashiq Hussain Ali-son of the deceased and PW Mst. Mehboob Begum-married daughter of the deceased, from where it revealed
that on the fateful day at about 8.30 p.m., the Appellant alongwith his aforesaid co-accused armed with lethal weapon made their entry into the
house of the deceased Mastan Ali Sheikh and asked him to come out of the house, when he refused to their command, coaccused Nissar Ahmed
alias Tunda (since declared proclaimed offender) asked the Appellant to open the fire, whereupon the Appellant released three gun shots from his
AK-47 hitting the deceased, who succumbed to the injuries at the spot itself. All the accused then fled away from the scene of occurrence.
The motive projected by the prosecution is that all the accused being trained terrorists having allegiance to one banned organization wanted to
disturb the peace and tranquility of the society so as to create sense of fear and insecurity amongst the people.
Formal arrest of the Appellant is shown when he was already in custody in another case bearing F.I.R. No. 04/1995 registered at Police Station
Banihal u/s 3/4 TADA. In the said case, he was arrested in May, 1996 alongwith one AK gun. This fact finds mention in the impugned judgment
also. After completion of the investigation, the challan was filed against him. He was formally charged for the offences punishable u/s 302/120-A
RPC read with Section 34 RPC and Section 27 of Arms Act. As stated above, he now stands convicted for the offences punishable u/s 302 RPC
and Section 27 Arms Act.
In support of its case, the prosecution has examined the following witnesses:
I. PW Ahmed Ullah
II. PW Aashiq Hussain Ali
III. PW Sara Begum
IV. PW Mehboob Begum
V. PW Ghulam Rasool
VI. PW Abdul Qayoom
VII. PW Sanaullah
VIII. PW Nazir Ahmed Sheikh
IX. PW Dr. Saif-ud-Din
Out of the aforesaid witnesses examined by the prosecution, PW Aashiq Hussain Ali, Mst. Sara Begum and Mst. Mehboob Begum are from
the family of the deceased. They are, in fact, eye witnesses to the occurrence and the entire prosecution case is virtually hinging upon their
evidence.
As stated above, P.W. 3 Ahmed Ullah is the Chowkidar of the village on whose information F.I.R. was lodged by PW Sanaullah. He is one
who heard noise from the house of the deceased and went there, and saw the dead body of Mastan Ali lying in the house. He told the police orally
about the occurrence. He is also a witness to the seizure memo of bullet of AK-47 rifle and the panchnama of the dead body. Similarly, P.W. 7 is
also post occurrence witness.
PW Nazir Ahmed Sheikh, who was SHO Police Station Banihal at the time of occurrence, has submitted the challan against the accused and
PW Abdul Qayoom, the then Head Constable, is the investigating officer of the present case.
PW Dr. Saif-ud-Din has conducted the autopsy on the dead body of the deceased-Mastan Ali. The Appellant, in his defence, has also
examined the following two witnesses:
i) DW Abdul Gani Dar
ii) DW Abdul Aziz
We do not feel the necessity of describing the statement of all the witnesses once again, in detail, as the entire criticism launched by Mr. Thakur
is on the reliability of aforesaid three eye witnesses to the occurrence, who happen to be the family members of the deceased. Let us refer to their
statements in brief. Evidence of PW Aashiq Hussain Ali son of the deceased is to the effect that he knew the Appellant prior to the occurrence. He
then described the occurrence in detail stating that on 10.10.1995 at about 8/8.30 pm., when all the family members were sitting in the kitchen of
their house, there was knocking at their door in which the aforesaid two co-accused of the Appellant namely Nissar Ahmed alias Tunda and Abdul
Latif alias Tufail entered the house whereas the Appellant remained outside the house. He names one of those two co-accused. He further stated
that the co-accused of the Appellant said that they wanted to talk to the deceased and told them to go outside and when they refused to go
outside, all the three accused forcibly dragged them out and thereafter one of them namely Nissar Ahmed alias Tunda gave signal to the Appellant,
who fired three shots upon his father, hitting the abdomen and the chest. Resultantly, he died at the spot. Upon their raising alarm, the villagers
including the Lamberdar and Chowkidar reached the spot and ultimately a report was lodged by the Chowkidar with the police.
In his cross-examination, this witness has stated that the Chowkidar resides in their neighbourhood and that his statement was recorded by the
police at the spot. He further states that accused Nissar Ahmed used to give threats to the deceased as he was employed in the army for a month
or so. This witness has denied having made any statement before the police that Nissar Ahmed had caught his mother by hair and dragged her out.
However, he is very specific in attributing the main role to the Appellant of firing shots from his gun while standing at the door of the kitchen. With
regard to the light in the house, this witness has stated that on the date of occurrence, the electricity was off, but there was light in the lantern.
Mst. Sara Begum, widow of the deceased, when stepped into the witness box, stated that when she, her husband, her son and daughter were
sitting in the kitchen, the Appellant accompanying three other assailants entered their house. She then talks of firing of the shot by Appellant and an
attempt made by her to catch hold of him, but remained unsuccessful. She further states that after the occurrence, all the accused fled away from
the spot. She also talks of villagers assembling at the spot after the occurrence. Her statement was also recorded by the police at the spot. With
regard to identification of the Appellant, in her cross-examination, she makes it clear that the Appellant resides in their neighbourhood, rather
making it more clear that in between there is only one small hill (in common parlance known as Pahari). She then stated that the distance between
their house and that of Appellant is coverable between 2-4 minutes and she had seen him 5/6 times before the occurrence and when he came to
their house, there was no mask on his face. The third star eye witness to the occurrence is Mst. Mehboob Begum, daughter of the deceased. She
has virtually toed the statement of her mother, but with some variations hither or thither. She states that the Appellant had told them to go out of the
kitchen and when her mother tried to save her husband, it is the Appellant who caught hold of her mother from hair and dragged her out of the
kitchen. She then states that when the Appellant had fired at her father, she, her mother and brother were present outside the house. She then
states that Lamberdar and Chowkidar of the village were called at the spot by the neighbourers.
She is specific in her cross-examination saying that they had not told to the villagers that her father was killed by the Appellant. She is also
specific in saying that the accused had not covered their faces at the time of occurrence. So far as firing of shots is concerned, she stated that shots
were fired by the Appellant from the door of the kitchen. Justifying about her presence at the time of occurrence, she made it clear that being
pregnant she had come to her parental house for the delivery of the child.
This is precisely the evidence of the eye witnesses to the occurrence.
The medical evidence before us is the autopsy conducted on the dead body of the deceased by Dr. Saifud- Din. He noticed the following three
injuries:
Entrance of bullet at lower left abdomen (left illiac fossa)
Entrance of bullet at left side of abdomen 2 from mid line of abdomen.
Entrance of bullet on medial side of right arm. The cause of death given by the doctor is due to shock and the injuries were sufficient in the
ordinary course of nature to cause death.
In his cross-examination, this witness has stated that no bullet was shown to him by the police during the course of investigation. He further
states that according to him, at the time of firing on the deceased, the assailant might be facing the victim. However, he is specific in saying that the
injury could not be caused in a scuffle and the victim is directly hit by the bullets.
We do not feel the necessity of depicting the investigation part once again as the same is already described hereinabove in brief by us.
However, at the appropriate stage, we may refer to the relevant part of investigation, if need be.
It is a case of total denial by the Appellant as is clear from his statement recorded u/s 342 Code of Criminal Procedure Two witnesses
produced by him in defence have stated that on hearing the noise, they reached the spot and found that many people including Lamberdar and
Chowkidar were present, where widow of the deceased 12 told them that her husband was killed by Nissar Ahmed alias Tunda and not by the
Appellant.
This is all about evidence on record.
Heard Mr. Thakur, learned Counsel appearing for the Appellant and Mr. Chandan, learned Dy. AG representing the State. Trial Court record
also perused minutely.
Mr. Thakur submits that, in fact, the prosecution version has been given a new shape altogether before the trial Court by changing the very
case set up by the prosecution in the F.I.R., which is lodged at the instance of PW Ahmed Ullah, Chowkidar of the village, wherein Nissar Ahmed
alias Tunda only has been projected as the main accused. It is stated therein that aforesaid Nissar Ahmed alias Tunda alongwith other three
miscreants (in common parlance known as Dehshatgard) armed with arms and ammunition had entered the house of Mastan Ali and killed him.
Picking up the thread from here, learned Counsel submits that till the report reached the hands of Illaqa Magistrate on the next day i.e. 11.10.1995
upto 10.40 a.m., which according to him is considerably delayed, the case of the prosecution was the same as it is reported in the F.I.R. He then
submits that had it been a case of true eye version account as now projected before the trial Court by producing three eye witnesses, who are from
the family of the deceased only, being wife, son and daughter, they would have not wasted any time in disclosing the name of the Appellant to the
Chowkidar, Lamberdar or any of the neighbour/villagers assembled at the spot immediately after the occurrence on hearing their noise. The
Appellant was the main person, who killed Mastan Ali Sheikh and therefore his name could not be skipped. This shows that the eye witnesses had
either not seen the occurrence at all or if seen, a twist is being given to the prosecution case by projecting a new story so as to falsely implicate the
Appellant as the main culprit (Nissar Ahmad) has not been nabbed by the police. This basic flaw by itself is enough to discard the prosecution case
in its entirety.
Mr. Thakur then submits that even otherwise the eye version account as projected before the Court is not trustworthy as all the three witnesses
are giving three different versions with regard to the main occurrence and, therefore, they have rendered themselves unreliable. He goes on to
submit that even otherwise it is not possible that in a case of indiscriminate firing by the assailant, none of the eye witness received any injury in this
case despite the fact that the wife of the deceased caught hold of the Appellant. This fact also creates doubt about the presence of these witnesses.
Pointing out the discrepancies in the statements of the witnesses, Mr. Thakur submits that as per the statement of Aashiq Hussain Ali, son of
the deceased, he states that Nissar Ahmed alias Tunda and Abdul Latif alias Tufail told the family members to go out and when they refused, all the
three accused, which includes the Appellant, forcibly dragged them out and then on the signal of Nissar Ahmed alias Tunda, the Appellant fired
three shots, whereas according to the widow of the deceased, the story projected is altogether different. She states that she alongwith her son,
daughter and husband were sitting in the kitchen, when Nissar Ahmed and Abdul Latif counted one, two and three, and thereafter the Appellant
fired three shots, which hit her husband. She tried to catch hold of Appellant, but remained unsuccessful and thereafter all the accused fled away
from the spot. She rather talks of another person, who was standing outside the house near window. Mr. Thakur then submits that so far as
Mehboob Begum, daughter of the deceased, is concerned, she comes out with altogether different story stating that when all the family members
were making preparation to have the meal, three accused came inside and asked the deceased to come out and when he refused, they forcibly
dragged him out. At that time, all the children came out except their mother (wife of the deceased). She further states that at that time the accused
had dragged their mother by catching hold of her from her hair. According to the learned Counsel, all the aforesaid discrepancies crept in the
statements of the eye witnesses, when appreciated in the light of the fact that none of the assailant has been attributed any specific part in the F.I.R.
which is got recorded by Chowkidar only after getting information from these witnesses, would assume importance so as to test their reliability.
One of the witnesses has rather increased the number of assailants from three to four.
Mr. Thakur then submits that even otherwise there could not be any occasion for the eye witnesses to identify the Appellant as they did not
know him earlier and it was a dark pitched night and they could not see the face of the Appellant, who otherwise according to the prosecution
story, was standing outside room. In this eventuality, the prosecution should have made an attempt to get the Appellant identified from all the
witnesses. This flaw also damages the prosecution case to a great extent.
Mr. Thakur criticizes the investigation part also stating that according to PW Abdul Qayoom, only two empty cartridges of AK-47 were lifted
from the spot, whereas the story developed is of firing three shots. Even otherwise, the empty cartridges were not sealed by the investigating
officer. Not only that there is no evidence on the file to show that those were ever sent to the Forensic Science Laboratory (FSL) for testing or
comparison so as to make it clear, whether those cartridges were actually used from AK-47 gun in the commission of the offence. According to
him, no recovery of any gun is allegedly shown from the Appellant and therefore, it can not be said with conclusive proof that AK-47 is used in this
occurrence and that too by the Appellant. The shoddy investigation conducted by the investigating officer in this case goes a long way to create
doubt in the mind of the Court with regard to the genuineness of the prosecution case so far as involvement of the Appellant is concerned, the
learned Counsel so contends.
Dwelling upon his arguments on the charge of 27 of Arms Act, Mr. Thakur submits that he was admittedly in custody in case F.I.R. No.
04/1995 registered at Police Station Banihal, which was being tried by TADA Court. In the said case, he is shown to have been arrested by Army
alongwith one gun make AK. He has been acquitted in the said case. Admittedly, there is no recovery of gun from the Appellant and the gun
recovered in another case in which he otherwise stands acquitted cannot be taken into account for holding the conviction u/s 27 of the Arms Act.
So according to the learned Counsel, on account of aforesaid vital flaws, the charge of Section 27 of the Arms Act is not proved against the
Appellant at all. Therefore, he may be acquitted of the said charge and consequently the notice for imposing death penalty in terms of Section
27(3) of the Arms Act be also dropped. This is all what is submitted by Mr. Thakur.
So far as conviction of the Appellant u/s 27 of the Arms Act is concerned, even Mr. Chandan learned Dy. Advocate General representing the
State, very fairly states that the prosecution case is stumbling badly on that aspect and perhaps he will not be able to support the judgment of the
trial Court in this regard.
However, with regard to charge of Section 302 RPC, Mr. Chandan submits that the case of the prosecution is proved to the hilt against the
Appellant from the statements of three eye witnesses of the occurrence who are most natural witnesses. May be there appears to be certain
discrepancies in the statement of these witnesses with regard to manner of occurrence, but that aspect would not demolish the case of the
prosecution in its totality. He then submits that no doubt in this case the investigation has also not been conducted as it was required, but for that
weakness, the Appellant is being benefitted with regard to a grave charge of Section 27 of the Arms Act for allegedly committing murder with
prohibited arm, which charge, if proved, death penalty is the only sentence. Weaknesses in the investigation, according to the learned State
counsel, in this case atleast, would not weaken the eye version account, which is true to the core. On these submissions, Mr. Chandan prays that
the conviction and sentence of the Appellant u/s 302 RPC atleast, may be upheld.
Before entering into detailed discussion with regard to the charge of Section 302 RPC, we, at the very outset observe here that the charge of
Section 27 of the Arms Act against the Appellant is not proved to the hilt. No doubt, it is a revolting murder, in which 3-4 assailants were initially
involved, out of which, only one (Appellant herein) could be nabbed by the police as two co-accused could not be arrested and proceeded u/s
512 Code of Criminal Procedure and the third died in an encounter. But there cannot be any moral conviction in criminal jurisprudence. Rather in
such type of occurrence, more care and caution is required. We have applied the same test in the present case also while appreciating the case of
the prosecution vis-vis the charge of Section 27 of Arms Act against the Appellant.
May be Mr. Chandan, learned State counsel has virtually admitted the weakness of the prosecution in proving this charge against the Appellant
on account of certain weaknesses in the prosecution case as pointed out hereinabove by Mr. Thakur, but we have also re-scanned the prosecution
case for our own satisfaction and are of the considered view that because of the flaws referred to hereinabove, charge of Section 27 of Arms Act
against the Appellant is not proved to the hilt and as such he deserves acquittal for the said charge. Since the said charge is not proved against him,
he, in any case, cannot be slapped with the sentence as provided u/s 27(3) of the Arms Act, for which, he was put to notice by this Court in terms
of order dated 20.02.2009. Consequently, he is discharged of the said notice as well.
Let us now advert to the charge of Section 302 R.P.C., for which offence, the Appellant already stands convicted and sentenced by the trial
Court.
Much has been said by Mr. Thakur with regard to the delayed information to the police and the effect thereof so as to demolish the eye version
account. No doubt, in this case, the special report has been received by the Illaqa Magistrate on 11.10.1995 at 10.45 a.m., i.e. after fourteen
hours of the occurrence, whereas the F.I.R. is lodged on 10.10.1995 itself at 10 p.m. (2200 Hours). This shows that the police is informed of the
occurrence within two hours.
It is well settled that no specific time is fixed for the dispatch of the special report by the police. The only requirement is that it should be sent
with promptitude so as to avoid introduction of story of the choice of the complainant party. So delay in sending the special report per se is not
fatal in every case and it depends upon the facts of each individual case. In the present case no new fact has been introduced in 12 hours, which
would change the complexion of the basic prosecution case. Rather, on the other hand, if the investigating officer wanted to introduce the name of
the Appellant as the main assailant, he had atleast twelve hours with him to develop a story of his liking or liking of the complainant side. It is not
the position before us. It appears to us that the investigating officer in his wisdom thought that instead of sending the special report to the Illaqa
Magistrate during the night hours, he sent it on the next day during Court hours and that is the reason that it reached the hands of the Illaqa
Magistrate on 11.10.1995 at 10.45 a.m. It can be said to be a casual approach by the investigating officer without any motive. Therefore, even if
there is a delay of few hours in sending the report to the Illaqa Magistrate in the case at hand, it will not be seen by us in an unrealistic manner.
In our view, the entire prosecution case depends upon the reliability of the eye witnesses to the occurrence. The attack launched by Mr.
Thakur on the reliability of the eye witnesses vis-""-vis the involvement of the Appellant stating that if the Appellant been there alongwith other
miscreants, his name would have been mentioned in the F.I.R., in our view, will not be of any help to him. Eye witnesses to the occurrence are
none else, but the family members of the deceased. In front of them, the head of family was shot dead by assailants. In these circumstances, one
can simply make out that they were under great shock and fear. Therefore, natural reaction was raising hue and cry, which ultimately attracted the
villagers and the persons residing in the neighbourhood. Ahmad Ullah-Chowkidar of the village is also one of them. It was not expected of the eye
witnesses to give the minute details of the occurrence to Chowkidar at that time. Any one of the eye witnesses who could sum up the courage to
depict a little bit about the incident, might have disclosed the name of Nissar Ahmad alias Tunda only and this is the reason that in the F.I.R. the
name of Nissar Ahmad alias Tunda has been shown in the fore front. When these witnesses were examined by the police on the next day, a
complete version about the occurrence was disclosed. That appears to be the reason that name of Appellant is initially missing in the F.I.R.
Attempt made by Mr. Thakur to dub three eye witnesses to the occurrence as unreliable on the strength of certain discrepancies crept in their
statements, in our considered view, is again a futile attempt. We do find certain discrepancies in their statements, but they are not of that nature so
as to disbelieve them with regard to active participation of the Appellant. The manner in which each witness has reacted to the occurrence has
been originally depicted by each of them. No standard reaction to a particular situation in a uniform manner is expected from all the witnesses. So
far as presence of the eye witnesses is concerned, it is most natural as all the witnesses were present with the deceased at about 8/8.30 p.m. and
were about to take meals. This is quite natural. Presence of Mst. Mehboob Begum, married daughter of the deceased, is also very natural as she
stated that in those days she was staying with her parents as she had to deliver a child. Simply that these witnesses were lucky enough in not
receiving any injury in this occurrence will not make them unreliable. Even otherwise, the target of the assailants was the deceased only and not any
of the eye witnesses.
Let us now examine the statements of these three star witnesses once again with regard to the discrepancies pointed out by Mr. Thakur. From
the statement of Mst. Sara Begum, wife of the deceased, it comes out that Nissar Ahmad and Tufail entered the house and the Appellant fired
three shots. She fixes Rasoi (kitchen) the place of occurrence. She further states that she made an attempt to catch hold of the accused (indicating
to the Appellant who fired shot), but he managed to escape (in her own language it is stated that mulzim ne muzhar ka baju dabaya aur chooda kar
bag gaya).
The statement of Aashiq Hussain is somewhat different. He states that the Appellant was standing outside and Nissar Ahmad and Tufail had
entered and said that they had to talk to the deceased and, therefore, asked his mother to go out, to which, she refused, upon which the Appellant,
Nissar and Tufail forcibly dragged her out and thereafter on asking of Nissar, the Appellant fired shots.
Mst. Mehboob Begum, daughter of the deceased, gives a little bit different version from what is stated by her mother and real brother. She
states that all the three persons had come inside the kitchen and asked her father to come out. She further states that she and her brother were
taken out of the room, but her mother did not come whereupon the accused caught hold of her mother from hair and dragged her out and kept one
man along her side. She then talks of one of the accused firing shot. Mr. Thakur has pointed out certain other minor discrepancies also.
In our view, all these discrepancies cannot be given much importance as they do not go to the root of the case. These are rather the natural
discrepancies, which are bound to occur in the most natural witnesses. There is a difference between the contradictions and discrepancies.
Contradictions can be said to be somewhat damaging, but the discrepancies, if not significant, should not be given undue weightage. A parrot like
version is not expected of a witness. Rather this would give an impression that the witness is tutored one. The natural witnesses to the occurrence
are supposed to be little bit discrepant on certain aspects. What is to be seen is, whether the discrepancies appearing in their statements destroy
the basic fabric of the prosecution case or not. If after testing their evidence on that yard stick, it is found that the evidence is trustworthy with
regard to the main occurrence, then the discrepancies found in their statements can be just ignored. In the case at hand, all the witnesses are rustic
villagers and, therefore, one should not expect the minutest details from such type of witnesses. Even the most truthful witnesses are over awed by
Court atmosphere and piercing crossexamination. For that also some margin has to be extended towards them. We, after examining the evidence
of three witnesses to the occurrence in its right perspective, are of the firm view that they are not stumbling at all so far as the main occurrence is
concerned.
Mr. Thakur has also tried to demolish the case of the prosecution with regard to the identification of the Appellant by finding certain faults in
the statements of the eye witnesses. We, however, are not in agreement with the learned Counsel on this aspect. In the cross examination, a
specific question was put by the defence to Mst. Sara Begum, wife of the deceased, who stated that she new the Appellant earlier as he resides at
a very short distance from their house. She makes it more clear by saying that there is a small mountain (Pahari) in between their house and that of
Appellant. She also makes it clear that she had seen the Appellant 5-6 times earlier also. Even otherwise, there cannot be any difficulty in
identifying a known person from a close distance. It was not that dark pitch night at the time of occurrence. Even otherwise, it has come in their
evidence that a lantern was burning. Therefore, in our view, there could not be any difficulty for the eye witnesses in identifying the Appellant. What
is most natural in the present case is that Mst. Sara Begum and Aashiq Hussain are naming the Appellant during the trial when they stepped into the
witness box, whereas Mst. Mehboob Begum, daughter of the deceased, is not naming him by name and she simply stated that the third person had
fired shots. She is a married girl not staying in the village of her parents and had come to her parental house for the delivery of the child. She could
be very comfortably tutored to name the Appellant as main assailant, which is not the case before us. She has not even stated that she knew the
Appellant earlier. No question is otherwise put to her to seek clarification on this aspect. This all goes to show that the wife and the son of the
deceased, who knew the Appellant earlier, have identified him in the Court also attributing the part of firing shots from his gun and not the third
witness. There cannot be any thing more natural than this in the present case.
We do find some defective investigation in this case with regard to the lifting of cartridges at the spot and the same not being sent to the F.S.L.,
which is fatal as the link is snapped vis--vis the weapon allegedly used in the occurrence. We are also conscious of the fact that no attempt has
been made to effect any recovery of weapon from the Appellant after he was formally arrested. The recovery of the fire arm (AK gun) allegedly
effected from the Appellant in another case, referred to hereinabove, in which he was arrested by the army, has no bearing upon the merits of the
present case. The Appellant, otherwise, has been acquitted in that case. On account of this shoddy investigation conducted in the present case, the
Appellant has already been put to a great advantageous position as he has already earned acquittal for the charge of Section 27 of Arms Act.
However, on account of defective investigation as discussed hereinabove, in our view, no damage will be caused to the basic case of prosecution
as unfolded by the three eye witnesses. Rather this aspect pales into insignificance when ocular testimony is found credible and cogent.
In the case of a defective investigation, the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting the
accused person solely on account of defect. To do so, it would tantamount to playing into the hands of the investigating officer. Justice can not be
made casualty like this. We have analyzed the evidence of eye witnesses with due care and caution keeping in view the correct legal principles and
have found that they are trustworthy for holding conviction of the Appellant u/s 302 R.P.C.
Perhaps, in our view, no other important aspect is left untouched by us in our discussion.
After churning the entire prosecution evidence once again by us being the First Court of Appeal, we are of the considered view that the
prosecution has been able to prove the charge punishable u/s 302 RPC against the Appellant beyond any shadow of reasonable doubt and
therefore, his conviction for the said charge deserves to be upheld.
As stated above, the Appellant already stands acquitted by us for the offence punishable u/s 27 of the Arms Act. The net result now surfaces is
that the instant appeal is partly allowed acquitting the Appellant for the charge of Section 27 of Arms Act and upholding his conviction and
sentence u/s 302 RPC.
Confirmation No. 04/2002 is answered accordingly.Registry to send the record to the concerned Court alongwith copy of the judgment. Jail
Superintendent where the Appellant has been presently lodged be also informed of the outcome of the present appeal.