MUSHTAQ AHMAD MALLA Vs. UNION TERROTORY

JUDGEMENT

(1.) The court of Additional Sessions Judge Handwara (hereinafter referred to as 'trial court) has convicted the appellant for the commission of offences punishable under Ss. 302, 201 RPC and 7/27 Arms Act in FIR No. 337/2005 of P/S Handwara vide judgment dtd. 31/12/2021 and sentenced him to imprisonment for life and a fine of Rs.50,000.00 for the commission of offence punishable under Sec. 302 RPC, with further sentence of imprisonment for a term of seven years and a fine of Rs.10,000.00 for the commission of offence punishable under Sec. 201 RPC, vide order dtd. 31/12/2021. In default of payment of fine in each case, the appellant has been ordered to undergo sentence for one year. Reference, in terms of Sec. 374 Cr.PC has also been made to this Court for confirmation of sentence of life imprisonment awarded to the appellant.

(2.) The judgment as well as the order of sentence has been assailed by the appellant on the ground that the learned trial court has not appreciated the evidence in its right perspective and has convicted the appellant without there being any incriminating evidence against him. SUBMISSION OF APPELLANT :

(3.) Mr. Lone, learned counsel for the appellant, vehemently argued that the PW-1 Mohd. Ramzan War and PW-2 Jaan Mohd. are the interested and related witnesses, being the father-in-law and the brother-in-law of the deceased respectively, as such, their testimonies cannot be relied upon for convicting the appellant, particularly when their presence on spot was doubtful. He further argued that the statements of two witnesses namely PW-5 Jan Mohammad and PW-7 Abdul Ahad Lone were recorded by the Investigating Officer after many years of the occurrence and the delay has not been explained by the prosecution, which clearly shows that they were planted witnesses. It was also urged by Mr. Lone that the weapon of offence has not been recovered and the empty bullets castings recovered on spot were not sent to FSL for ballistic examination. Mr. Lone further argued that the evidence of the PW-1 Mohd. Ramzan War, that the deceased was shot at from a close range, is contrary to the medical evidence, as the PW-8 Doctor Nazir Ahmed has categorically stated that there was no blackening of the skin around the wounds on the body of the deceased, which is necessary when the bullet is fired from a close range. It was also vehemently urged that no agricultural activity is undertaken in Kashmir during peak winters, as such PW-1 Mohd. Ramzan War has made wrong statement that he was planting and pruning the apple trees. In alternative, learned counsel for the appellant argued that in view of the statement of PW-8 Dr. Nazir Ahmad, the appellant can only be convicted for commission of offence punishable under Sec. 304-I or 304-II RPC. In nutshell, the contention raised by learned counsel for the appellant is that the learned trial court has not rightly appreciated the evidence and has ignored the material contradictions in the testimonies of PW-1 Mohd. Ramzan War, PW-5 Jaan Mohd. War and PW-7 Abdul Ahad Lone. SUBMISSION OF RESPONDENT :