S. No. 21 v. State of J&K

where PW-1 has stated in the FIR and her written report on the basis of which the FIR was drawn that the appellant, armed with a gun came to her residence, at which time the deceased was not at home as he had gone towards “Adda” with the cattle. In the FIR, the witness has stated that the appellant was furious and left to the place where the deceased was supposed to be. As PW-1 suspected that there was something amiss, she is stated to have followed the appellant and there she saw her husband proceeding towards Village Blahar along with the cattle. She says that the deceased was fired upon by the appellant in her presence due to which the deceased fell on the ground.

03. Two other witnesses Anzar and Imtiaz were also present on the spot, as per the version given by the PW-1 to the police. On the basis of her written complaint, the FIR was registered at 12:05 PM on 12.03.2013 of an incident that had taken place at 10:30 AM, the same day. Copy of the FIR was received in the Court of the Munsif Magistrate, Hiranagar at 4:30 PM as per the endorsement on the FIR. The FIR has been exhibited as EXP-23/4. The appellant is the sole named accused in the FIR. 3 CRA No. 2/2018

04. In the course of the trial, PW-1, PW-2 & PW-3 all turned hostile. PW- 1 the wife of the deceased says that she was there at the time of the occurrence, but she does not know who shot her husband. Anzar and Imtiaz stated that they arrived at the scene of occurrence hearing the gun shot and found the deceased lying on the ground. Thus, there was a departure before the learned trial Court from the statements in the FIR and in the 164-A Cr.PC statements. Notwithstanding the witnesses turning hostile, the learned trial Court has convicted the appellant as hereinabove.

05. As regards the findings of the learned trial Court on questions of law, this Court is in respectful agreement with the same. The view of the learned trial Court that notwithstanding the eyewitnesses having turned hostile, that part of the statement of the hostile witness can still be taken into consideration, which bears consistency with statements of other witnesses, and which have been corroborated by forensic or material evidences is a view that this Court also concurs with. Likewise also, this Court agrees with the opinion of the learned trial Court that witnesses turning hostile does not mean that the case of the prosecution ought to be thrown out and that the Court must look for such evidence, which is credible on the basis of which the conviction, may be based.

06. On facts, this Court also concurs with the view of the Ld. trial Court that based upon the statements of the alleged eyewitnesses, the inference can be arrived at that the deceased died of a gunshot injury. This also bears corroboration from the post-mortem report where two pellets were recovered from the body of the deceased. The ballistic 4 CRA No. 2/2018 report, which shall be referred to, also discloses that the two greyish pellets were stated to have been fired from a 12-bore weapon and that the cartridge that was found inside the weapon allegedly seized from the appellant and the test fired cartridge were both fired from the same gun. As regards the ballistic report, it is pertinent to mention here that the pellets which are fired from a twelve bore weapon are incapable of comparison, as a twelve bore firearm is a smooth bore weapon, which will not leave any marks of rifling on a pellet. However, the same can still be identified on the basis of the impression left by the firing pin on the percussion cap of the cartridges. The FSL report does not mention how the expert arrived at the opinion that the cartridge used in the incident and the test fired cartridge were both fired from the same 12-bore fire. It has no reference to the cartridges being placed under a comparison microscope and what the expert observed in relation to the impressions left by the firing pin on the percussion cap. In this regard, reference to Section 51 of the Evidence Act would be essential, as the opinion of the expert requires him to describe the experiments/tests conducted by him to arrive at the opinion/finding, which is given in the report. However, the same is conspicuous by its absence in the FSL report which is EXT-P17. Therefore, the same non-compliant of Section 51 of the Evidence Act and so, much weightage cannot be and placed on the same.

07. As regards the finding of the learned trial Court with regard to the witnesses turning hostile with specific reference to PW-1, where the learned trial Court at internal page 55 of the judgment has held that PW-1 may have turned hostile, as the accused/appellant was her 5 CRA No. 2/2018 brother-in-law and on account of familiar relations may have turned hostile. With the highest regard to the observations of the learned trial Court, this Court finds the same to be speculative in nature on account of absence/statement on any other witness that PW-1 had turned hostile on account of this reason.

08. The learned trial Court has also accepted that the gunshot was fired from the licensed weapon of the accused only on the ground that the accused did not dispute the same. In this regard, it is necessary for this Court to observe that the weapon license book of the accused was never produced or exhibited before the learned trial Court and neither was the report given by the Executive Magistrate relating to the license issued to the appellant, exhibited before the learned trial Court. It would only be the licensed book which would reveal as to what firearm and ammunition was purchased by the appellant, as the same would have to be entered in the licensed book by the arms dealer from whom the weapon and the ammunition was purchased. The non- production of the weapon license book belonging to the appellant before the learned trial Court leads to an inference that no proof was placed before the learned trial Court to establish that the weapon allegedly seized at the behest of the appellant was his licensed weapon.

09. Coming to the crux of this case is the sequence which follows the arrest, the disclosure memorandum under Section 27 of the Evidence Act and the seizure of the firearm. The arrest memo (which has not been exhibited before the learned trial Court) registers the time of arrest as 9:30 PM of 12.03.2013. However, undisputedly the 27 6 CRA No. 2/2018 memorandum and the seizure memo are prepared before the arrest of the appellant.

10. Learned counsel for the Union Territory with specific reference to the PW-23 (Gurnam Singh Choudhary), who is the Investigating Officer of this case, has taken this Court through those relevant portions where these issues have been posed before the Investigating Officer. The Investigating Officer states that the arrest was made before the arrest memorandum was prepared. According to him, the appellant was arrested at little after 5:00 PM of 12.03.2013. However, their memorandum of arrest was prepared at the police station where the time has inadvertently been given as 9:30 PM. The said contention does not appeal to this Court and the same cannot be dismissed as a mere error for the simple reason that the same is fatal to the prosecution’s case. Nothing prevented the police from correcting it, giving the appropriate time of arrest, and endorsing it with the signature of the Investigating Officer about the corrected time before the charge sheet was filed.

11. Under such circumstances, the fact remains that the appellant was arrested much after the preparation of the 27 memorandum and the seizure being executed. As regards the 27 memorandum, the incriminating part of the 27 memorandum cannot be taken into account and it must be stated in favour of the learned trial Court that it has not taken the incriminating part of the 27 memorandum in arriving at the finding of guilt against the appellant. It has, however, relied upon the witnesses to the seizure memorandum only to prove that the 7 CRA No. 2/2018 appellant had allegedly disclosed in their presence about his firearm and where he had hidden it.

12. However, another aspect that comes out from the memorandum under Section 27 and the seizure memo is that both these documents did not give the name of the accused. In other words, both these documents records “State Versus _____.” This strongly raises the suspicion that the FIR was antedated, as the FIR discloses the name of the appellant as the sole accused who had committed the crime. If the disclosure statement and the seizure memo was prepared after the FIR was registered, they should have necessarily borne the name of the accused. More so, the memorandum u/s. 27 of the Evidence Act and the seizure memo should necessarily have borne the name of the appellant because according to the case of the prosecution, the same were prepared after the accused/appellant was in their custody and the same were prepared on the basis of the alleged confession/disclosure made by the appellant.

13. This Court is thus of the view that the eyewitnesses having turned hostile, the identity of the appellant as the accused is under a cloud of doubt. The subsequent documents that have been prepared by the police with regard to his 27 memorandum and the seizure memorandum, go to reflect that the same have been made before the appellant was arrested.

14. A question of law posed itself to this Court with regard to un- exhibited documents. In this case, the arrest memo is not exhibited before the learned trial Court. The other document that has not been exhibited is the report from the Executive Magistrate, which discloses 8 CRA No. 2/2018 that a particular arms license number /license was issued to the appellant herein. Thus, there are two documents which are not exhibited, one in favour of the appellant and the other against the appellant. The question that arose before this Court is that how to deal with the same. All the documents that are produced by the prosecution in the charge sheet is presumed to be admitted by the prosecution. However, if the accused, at the stage of admission and denial of documents u/s. 294 Cr.P.C admitted any document filed by the prosecution along with the chargesheet then, those documents, even if not exhibited (as are not required under Section 294 Cr.PC), can still be used against the accused. In this particular case, the arrest memo is in favour of the accused, which shows that he was arrested in 9:30 PM and is a document of the prosecution accompanying the charge sheet. The same, even if not exhibited can be considered in favour of the accused. Holding otherwise would lead to a situation where the prosecution may refrain from exhibiting those documents which may be in favour of the accused though filed along with the chargesheet and later claim that the same cannot be considered by the Court, as the same were not exhibited. That would lead to a miscarriage of justice.

15. As regards the document which is issued by the Executive Magistrate relating to the license, the same has never been admitted by the accused under Section 294 Cr. PC and, therefore, the same cannot be considered against the accused as the same was never exhibited in the course of the trial.

16. In view of what has been argued and considered by this Court hereinabove, we find that the prosecution has not been able to prove 9 CRA No. 2/2018 the case against the appellant beyond reasonable doubt and, therefore, the appeal succeeds. The impugned judgment of conviction is set aside.

17. The appellant is acquitted, and he shall be released forthwith, if not convicted in any other case. The appeal stands disposed of along with CONF No. 2/2017. (SANJAY DHAR) JUDGE (ATUL SREEDHARAN) JUDGE JAMMU 03.10.2024 Mihul Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No