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2005 DIGILAW 49 (JK)

Mohd. Yousaf v. State Of J. &K.

2005-03-14

S.K.GUPTA, V.K.JHANJI

body2005
S.K. Gupta, J. The appellant-Mohd. Yousaf Katoch sent up for trial to face the charge for offence under section 302 RPC was convicted and sentenced to life imprisonment and a fine of Rs. 25,000/- for having caused the murder of Mohd Yousaf son of Mohd Ibrahim, teacher, Government High School Pogal, in the school premises on 06.12.1996 in broad day light, by the Additional Sessions Judge, Ramban, vide his judgment and order dated 30.04.1999. Against this judgment and order of conviction/sentence, the appellant has preferred criminal appeal No. 10/1999 to impugn its correctness. 2. The prosecution case can be compendiously stated thus. The appellant- Mohd Yousaf Katoch son of Ghulam Qadir Katoch, ex-army man, armed with his licensed 3.15 bore Rifle entered the premises of the school when the school staff and other teachers were busy in the `Verandah of the school in framing the time table at 12 Oclock on 06.12.1996, shouting in loud voice that the deceased had illicit relation with his wife and headmaster has not paid any heed to his grievance despite a complaint made to him and would not spare the deceased. Mohd. Yousaf, teacher, was also on duty in the school, started proceeding towards `Verandah at fast pace with the help of his stick as he was physically handicapped by both of his legs polio stricken. The accused also reached the `Verandah, aimed at the deceased-Mohd Yousaf and fired upon him from his rifle, which hit the deceased on his back, as a result of which he fell down on the ground and started bleeding profusely. The accused thereafter proceeded towards the dead body of the deceased and started kicking the body to ensure that the deceased has died. The accused thereafter left the school after the occurrence. A verbal report to this effect was lodged by Ghulam Mohd.-peon of the school, detailed by the Headmaster to Police Post Ramsoo, on the basis of which a case under sections 302/452 RPC and 3/25 Arms Act stood registered against the appellant. The police repaired to the scene of occurrence on 07.12.1996, took over the possession of the dead body of the deceased and sent it for post mortem examination to Ukhral Hospital. After the post mortem examination, dead body of the deceased was handed over to his heirs. The police repaired to the scene of occurrence on 07.12.1996, took over the possession of the dead body of the deceased and sent it for post mortem examination to Ukhral Hospital. After the post mortem examination, dead body of the deceased was handed over to his heirs. The accused was arrested by the police and rifle 3.15 bore alongwith one empty cartridge case was seized from his possession on 07.12.1996. On the conclusion of investigation, the challan was finally presented in the Court below against the appellant to stand his trial for alleged offence under section 302 RPC and the trial court after conducting trial found him guilty of the offence charged and sentenced him accordingly. 3. Mr. Sakal Bhushan, learned counsel appearing for the appellant, argued that the prosecution case suffers from glaring defects and the evidence relied upon by the prosecution does not warrant the conviction because the written report about the occurrence stated to have been written by P.W. Mohd Hussain Deng- Headmaster and sent to the police post Ramsoo through Ghulam Mohd-Peon, is missing and no plausible explanation has been tendered by the prosecution. He further stated that Mohd. Yousaf-deceased was stated to be a crippled by both of his legs being polio stricken and could only walk with the help of stick but neither the stick nor the Chapel of the deceased has been seized by the investigating officer. That the coat, shirt and shalwar of the deceased were sealed and kept in the packet but the Shalwar was missing and the Forensic Science Laboratory did not find the Shalwar on opening of the sealed packet, which shows that the packet was tampered before it reached the F.S.L. for chemical analysis which causes a serious doubt about the occurrence as unfolded by the prosecution. 4. Mr. Ajit Singh Dogra, learned Dy. AG appearing for the respondent, on the other hand argued that the direct evidence of the eye witnesses, relied by the prosecution coupled with the post mortem report and other incriminating evidence collected and produced in the Court, is consistent only with the hypothesis that the accused had alone killed the deceased- Mohd Yousaf, teacher, High School Pogal, on the alleged day of occurrence in the broad day light with a gun shot from his rifle 3.15 bore. 5. 5. We have heard learned counsel appearing for the respective parties and also perused the record meticulously. 6. In order to prove the accusations against the accused, the prosecution has relied upon the direct testimony of eye witnesses namely Ghulam Mohd- peon, High School Pogal, Mohd. Hussain Deng- Headmaster, Abdul Rashid Bali- Teacher, Bashir Ahmed Butt- Teacher, Abdul Qayoom Katoch- Teacher, Khursheed Ahmed Katoch- Contractor, who happened to be there at the time of occurrence and witnessed the occurrence with naked eyes. 7. The evidence produced by Ghulam Mohd- peon is to the effect that the deceased-Mohd. Yousaf was a teacher in the High School Pogal and handicapped by his both legs. On 06.12.1996, at about 12 Oclock he was in the `Verandah of the school, when saw the accused armed with a rifle entered into the school premises. The teachers of the school, Abdul Qayoom Katoch, Abdul Rashid Bali, Bashir Ahmed Bhat and Headmaster- Mohd Hussain Deng were busy in taking their classes. On seeing the accused armed with rifle, he (witness) and other teachers ran towards the room for shelter. He heard the sound of a gun shot, came out of the room and saw Master- Mohd Yousaf lying dead in the `Verandah of the school and blood gushing out from his back. He was called by the Headmaster and given a written report to be lodged with the police post Ramsoo. He handed over the report, written in English, to the Incharge Police Post Ramsoo. The witness stayed at Ramsoo for the night and accompanied the police to the place of occurrence on the next day morning i.e. 07.12.1996. He also identified his signature on report No. 11 dated 06.12.1996 in the Roznamcha. The investigating officer prepared some documents on spot and also effected the arrest of the accused. In cross-examination, however, witness stated that he had only heard the sound of the gun shot but not seen the accused firing upon the deceased. He admitted, when suggested by the defence, that Headmaster-Mohd Hussain Deng, Abdul Qayoom Katoch, Bashir Ahmed Bali and Bashir Ahmed Bhat were preparing time table at the time of occurrence. In cross-examination, however, witness stated that he had only heard the sound of the gun shot but not seen the accused firing upon the deceased. He admitted, when suggested by the defence, that Headmaster-Mohd Hussain Deng, Abdul Qayoom Katoch, Bashir Ahmed Bali and Bashir Ahmed Bhat were preparing time table at the time of occurrence. He also stated to have narrated this fact to the incharge police post Ramsoo but does not know as to why it was not mentioned in the report- EXPW1-A. He also stated that the stick was not seized by the police on spot and identified the clothes which the deceased was wearing on the day of occurrence. It is also in his evidence that the accused in loud voice was stating that the deceased had illicit relations with his wife and the headmaster, despite complaint, did nothing. The witness also stated that on the day of occurrence, Contractor- Khursheed Ahmed Katoch was also in the school in executing the work through engaged labour. 8. Similarly, P.W. Mohd Hussain Deng-Headmaster High School Pogal, deposed that he alongwith other teachers Abdul Rashid Bali and Bashir Ahmed Butt were busy in making the time table on the day of occurrence in the `Verandah of the school, when heard the accused shouting loudly that Mohd Yousaf-deceased had committed rape on her wife, he will not spare him. The accused entered the school premises with rifle in his hand. He alongwith other teachers proceeded towards the office. In the meantime, deceased-Mohd Yousaf, teacher, who was on duty in the school also came out in the `Verendah on hearing his name called by the accused. The deceased being crippled by both the legs could not move fast with the stick and by that time the accused also reached near the `Verandah, aimed and fired upon the deceased on his back with his rifle, as a result of which Mohd Yousaf fell down on the ground and started bleeding. The entire occurrence was witnessed by him and the other teachers from the office. He also stated that the accused came near the dead body and kicked in a criminal manner to ascertain that the deceased has died and thereafter left for his house alongwith gun. He also stated that P.W. Ghulam Mohd.-Peon, was sent to police post Ramsoo with a written complaint in English. He also stated that the accused came near the dead body and kicked in a criminal manner to ascertain that the deceased has died and thereafter left for his house alongwith gun. He also stated that P.W. Ghulam Mohd.-Peon, was sent to police post Ramsoo with a written complaint in English. The police came on spot on the next day and the dead body of the deceased remained in the school premises through-out the night. The dead body of the deceased was shifted to the hospital for post mortem. He also identified the rifle used by the accused in the commission of the offence and the coat and shirt which the deceased was wearing at the time of occurrence. He also stated that the accused had complained to him orally about the deceased teacher having sexual relations with his wife but the deceased on inquiry denied the allegations and stated that the God had already made him disabled, he would not indulge in such acts. The suggestion from the defence, that the deceased had been shot dead out side the school premises and his heirs had brought him in the school `Verendah thereafter, had been denied. He also stated that the deceased was fired upon by the accused from a distance of 10-12 feet. He also disclosed that Khursheed Ahmed Katoch-Contractor, was executing the work in the school and was present there at the time of occurrence. 9. PW-Abdul Rashid Bali is another eye witness of the occurrence being a teacher on duty in the school at the time of incidence. He stated that the occurrence took place on 06.12.1996 at about 12 O clock, when Mohd Hussain Deng-Headmaster, Abdul Ahmed Katoch- teacher and Bashir Ahmed Butt- teacher alongwith other teachers were busy in framing the time table in the `Verendah. When deceased had gone to wash his face on one side of the school, the accused armed with rifle entered the school premises. As soon as the deceased entered the `Verandah of the school, the accused fired with his rifle upon the deceased on his back, as a result of which the deceased fell down and started bleeding. The accused thereafter kicked the dead body of the deceased to ensure that the deceased has died and thereafter left towards his house. As soon as the deceased entered the `Verandah of the school, the accused fired with his rifle upon the deceased on his back, as a result of which the deceased fell down and started bleeding. The accused thereafter kicked the dead body of the deceased to ensure that the deceased has died and thereafter left towards his house. He alongwith other teachers came to the `Verandah near the dead body of Mohd Yousaf-teacher and found that he had died. He is also stated to have identified the rifle used by the accused in committing the murder of teacher-Mohd Yousaf. According to him, the deceased was crippled by his both legs on account of polio and could only walk with the stick. A written report was prepared by the Headmaster and sent for registration of the case through Ghulam Mohd-peon. The accused when entered the premises loudly shouted that the deceased is having sexual relation with his wife and the headmaster on his complaint has taken no action. This witness also refuted when suggested that the deceased had gone to the house of the accused and was returning from the house at the time of occurrence. In fact the deceased was washing his hands and face in the school premises from a bucket of water to offer prayer. He further deposed that the accused was arrested on 07.12.1996 and rifle, the weapon of offence, seized from his possession by the police. 10. Whereas the evidence provided by the teacher-Bashir Ahmed Butt, who also happens to be an eye witness of the occurrence, is to the effect that he was in the `Verandah of the school alongwith Headmaster and other teachers, and preparing time table when heard loud voice at about 12 O clock of the accused while entering the premises of the school armed with rifle. He aimed at the deceased-Mohd Yousaf with the rifle while the latter was walking in the `Verandah of the school after washing his hands and face to offer Friday prayers and fired a shot upon him at his back. The deceased fell down as a result of the injury sustained by the gun shot. The children in the school also cried on seeing the occurrence. He also identified the rifle having a slim barrel used by the accused in the commission of the offence. The deceased fell down as a result of the injury sustained by the gun shot. The children in the school also cried on seeing the occurrence. He also identified the rifle having a slim barrel used by the accused in the commission of the offence. He also refuted the suggestion of the defence that the deceased in fact had been killed at some other place but the dead body was brought in the `Verandah of the school. Khursheed Ahmed Katoch- Contractor executing the work in the school was also present at the time of occurrence. The accused was telling that the deceased had been committing illicit inter-course with his wife to the headmaster but the latter did not take any action. 11. PW-Abdul Qayoom also a teacher in the High School Pogal on the day of occurrence stated that at about 12 O clock accused entered the premises of the school when headmaster alongwith other teachers was preparing time table in the `Verandah. The accused armed with rifle entered the school and shouted that the deceased was having illicit relations with his wife but the headmaster did not control him though informed several times. The accused on seeing the deceased walking near the `Verandah proceeded towards him and fired upon him on his back with the rifle. The deceased fell down as a result thereof and died. He alongwith headmaster and other teachers went inside the room and witnessed the occurrence. It is also in his evidence that the accused addressed the deceased in telling that he was sleeping with his own wife on one side and the wife of the accused on the other side. Thereafter the accused left the place of occurrence and proceeded towards his house. When saw the accused leaving the school, they came out of the room and proceeded towards the deceased. They called the deceased but without any response and was found dead. Report was drafted by the headmaster and sent to the police post Ramsoo through Ghulam Mohd- peon. On the next day, the police came on spot, recorded the statements of the witnesses, took possession of the dead body of the deceased. The accused was also arrested and rifle recovered from his possession. The dead body of the deceased was sent for post mortem. On the next day, the police came on spot, recorded the statements of the witnesses, took possession of the dead body of the deceased. The accused was also arrested and rifle recovered from his possession. The dead body of the deceased was sent for post mortem. The stick with the help of which the deceased used to walk was found lying near the dead body. He also denied when suggested that the deceased had gone to the house of the accused and the latter was following him while returning from that place. That the deceased and the accused were cousins so were their wives. They have also constructed their houses at Ramban adjacent to each other. He also denied when suggested that the deceased had been killed by militants and the dead body was brought in the `Verandah of the school. 12. Another eye witness of occurrence is Khursheed Ahmed Katoch- Contractor, executing the work in the school and was present there at the time of occurrence. His labour was working in the school compound at 12 O clock on 06.12.1996. He noticed that the accused entered the school premises, shouting at the headmaster- PW Mohd Hussain Deng. In the meantime, Mohd Yousaf-deceased entered the `Verandah on whom seeing the accused aimed at him with the rifle. The deceased who was a handicapped by both of his legs started taking quick steps with the help of the stick. The accused also reached near him and fired upon the deceased from a distance of 10-15 feet. The deceased grumbled and fell down. The accused gave 1-2 kicks to the dead body of the deceased in stating that `I made you with my own hands and have killed you with my own hands. Headmaster of the school and other teachers namely Abdul Qayoom, Bashir Ahmed Butt and Ghulam Mohd- peon were also present in the school at that time. His statement was also recorded by the police on 07.12.1996. The witness further stated that the accused had told that the deceased was having illicit relations with his wife about which complaint was made to the headmaster but no action has been taken. The accused also kicked the dead body of the deceased after firing a gun-shot upon him. About 300-400 people had assembled in the school after the accused left the premises in causing the murder of the deceased. The accused also kicked the dead body of the deceased after firing a gun-shot upon him. About 300-400 people had assembled in the school after the accused left the premises in causing the murder of the deceased. The rifle was seized from the house of the accused on his arrest by the police. The presence of Khursheed Ahmed Katoch- contractor at the scene of occurrence has also been proved in the evidence of defence witness- Abdul Hamid. 13. Witness- Ghulam Rasool is the real younger brother of the deceased and on being informed about the murder of Master- Mohd. Yousaf, rushed to the school at Pogal. According to him, the police arrived there on next day and took the possession of the dead body, seized the rifle and one cartridge case from the accused after his arrest and also clay (bloodstained and plain clay) from the spot separately and prepared seizure memos EXPW8-D, EXPW8-C, EXPW8-E, EXPW8-B and EXPW8-A respectively, which too were marginally attested by PW-Abdul Latief Katoch who also happens to be there at that time. The witness further stated that the accused had come to his shop about three months prior to the occurrence and told him about the deceased having sexual relations with his wife and the witness should control the deceased. When he enquired from the deceased about the allegations leveled against him by the accused, the deceased emphatically denied and stated that the accused unnecessarily suspected. He also denied when suggested by the defence that the deceased was found by the accused committing sexual inter-course with his wife and fired a gun shot, killing him in the house, and later the dead body was brought to the school premises in order to save the image of the school on account of the absence of the deceased from the school at the relevant time. He also stated that the wife of the accused and that of the deceased are cousins. Receipt of the dead body of the deceased handed over for last rites ceremony marked as EXPW11-C, with regard to the seizure of the wearing apparel of the deceased and the packet containing clothes sealed bearing inscription "R" kept on superdnama of Mohd. Khalil Katoch vide EXPW11-B were prepared in presence of PW Abdul Rashid Katoch and marginally attested by him. 14. Khalil Katoch vide EXPW11-B were prepared in presence of PW Abdul Rashid Katoch and marginally attested by him. 14. PW- Mohd Iqbal Katoch is also the attesting witness of the seizure memo EXPW11-B pertaining to the Superdnama of the Ring with which the packet containing clothes were sealed. To the same effect is the statement of PW- Mohd Khalil Katoch. The packets containing clothes and rifle were produced before Naib Tehsildar- Dhrub Singh and re-sealed in his presence regarding which a certificate EXPW13-A bearing his signature was issued by him. 15. The post mortem examination of the dead body of the deceased was conducted by two doctors namely Dr. Shabir Ahmed, Medical Officer Pogal and Dr. Mohd Rafi, Medical Officer, Ukhral, at the instance of the police on 07.12.1996 and found the following injuries:- "(I) Wound of entry on the right side just below the right infra scapular region, size 1 cm x 1 cm circular in shape. (II) Wound of exit found just above the right hypochondrium of 3 cms x 3 cms and free ends of the two fractured ribs could be seen. Exit wound was full of clotted blood was more or less oval in shape. The above injuries were external. The following internal injuries were there:- 1. Inferor lobe of the right lung, raptured with collapse of rest of the lung. 2. Right lobe of the liver completely raptured with partial damage to the left lobe of the liver." 16. The cause of death was torrential hemorrhage leading to shock and death. Doctors further stated that since there was wound of entry and exist found on the dead body of the deceased at the time of examination, weapon of offence used could be the rifle. The wound of entry, exit and the internal damage was the cause of death. The doctors further opined that torrential hemorrhage which caused the death of the deceased was a result of gun shot injury. It is in the evidence of the doctors that the injuries to lung and liver both being vital organs, the liver being highly vascular and injury to it can lead to severe hemorrhage. Thus injury to lung itself was sufficient to cause death and injury to liver was also sufficient to cause the death. The post mortem report under the handwriting of Dr. Shabir Ahmed is marked as EXPW14-M. 17. Thus injury to lung itself was sufficient to cause death and injury to liver was also sufficient to cause the death. The post mortem report under the handwriting of Dr. Shabir Ahmed is marked as EXPW14-M. 17. In considering the question as to whether evidence given by a witness should be accepted or not, the Court has, no doubt, to examine whether the witness is an interested witness and to enquire whether the story deposed by him is probable and whether it has been shaken in cross-examination. It is hardly necessary to add that it would be unsafe to discard the evidence of a witness which appears otherwise to be reasonable and probable, merely because some suggestions were made to him, without those suggestions being proved to be true. 18. The court has to judge the total cumulative effect of all the proved circumstances, each of which re-inforces the conclusion of the guilt of the accused. The question of examining the independent witness arises only when the Court has genuine doubt regarding the reliability of the witness examined in the case. 19. The evidence of the eye witness, if accepted, is sufficient to warrant conviction though in appropriate cases the Court may as a measure of caution seek some confirming circumstances from other sources. But ordinarily, the evidence of a truthful eye witness is sufficient without anything more, to warrant a conviction and cannot, for instance, be made to depend for its acceptance on the truthfulness of other items of evidence such as recovery of weapons, etc. at the instance of the accused by the police. 20. In the present case, the first informant- Ghulam Mohd, peon, was an eye witness of the occurrence. He was a Peon in the school. The informant was on duty in the school when the accused- Mohd Yousaf Katoch entered the premises with 3.15 bore rifle in his possession. He has a graphic narration of the incidence in the F.I.R. depicting the manner in which the accused has caused the murder of the teacher- Mohd Yousaf son of Mohd. Ibrahim with a gun shot. The F.I.R. clearly revealed that the deceased teacher, Mohd. Yousaf, was proceeding towards the office of the school, the accused fired upon him by his rifle at the back of the deceased as a result of which he fell down and died. Ibrahim with a gun shot. The F.I.R. clearly revealed that the deceased teacher, Mohd. Yousaf, was proceeding towards the office of the school, the accused fired upon him by his rifle at the back of the deceased as a result of which he fell down and died. It is also found in the F.I.R. that the entire staff of the school was present in the `Verandah when the occurrence took-place. The F.I.R. also contains that the deceased was a disabled person, handicapped by his both legs due to polio and could walk only with the help of stick. The occurrence took place on 06.12.1996 in the mid day at about 12 O clock in the premises of High School Pogal. The evidence provided by this witness proved the recitals in the F.I.R. which stood fully corroborated in the testimony of other eye witnesses namely Mohd Hussain Deng, Headmaster, teacher- Abdul Rashid Bali, teacher-Bashir Ahmed Butt and teacher- Abdul Qayoom, who were present in the `Verandah and preparing the time table of the school. All these witnesses are the staff members of the school and their presence at the time of occurrence is natural and, thus, cannot be doubted. Their evidence is consistent, natural, straightforward, positive and cogent and fully corroborated by the F.I.R. and the evidence tendered by the informant- Ghulam Mohd, peon of the school. The name of the assailant has been disclosed in the F.I.R. Further corroboration found to the evidence of the eye witnesses is in the testimony of P.W. Khursheed Ahmed Katoch- contractor, whose presence on spot at the time of occurrence is emphatically proved in their testimony. PW- Khursheed Ahmed Katoch, Contractor had been engaged by the Block Development Officer to execute the work in the school. He was getting the work executed through labour and was present in the compound of the school. The witness unambiguously stated that the accused-Mohd Yousaf Katoch came in the school premises in the mid day at about 12 O clock on 06.12.1996 and called out in loud voice that the deceased had a sexual relation with his wife about which he complained to the headmaster but no action has been taken by him and today he will not spare the deceased. It is also in the evidence of Khursheed Ahmed Katoch-contractor, that the accused was armed with rifle and fired upon the deceased Mohd Yousaf teacher from behind while the latter on seeing the accused was moving fast with his stick in the `Verandah as his both legs were polio stricken. The deceased fell down from the back after receiving injury from the gun-shot and died. It is also in his evidence that the matter did not end up there and the accused in order to ensure that the deceased has died with the gun-shot fired by him, went up to the dead body and kicked. The accused was an ex-army man and fired upon the deceased from a point blank range i.e. from the distance of 10-15 feet animated with criminal intention to cause his death. Eye witnesses have given cogent and consistent versions about the manner in which the accused committed the crime. Nothing was elicited in their pungent cross-examination to discredit their evidence. It is pertinent to point out that the direct evidence always occupies top position. 21. As in the instant case, when the offence committed by the accused is established by unimpeachable corroborative evidence viz., the report lodged with the police and the medical evidence, there is no need to go in search of elusive independent witnesses. The murder has taken place in the broad day light in the school premises where the headmaster and the teachers besides other staff were on duty. It was but natural for the witnesses to have seen the occurrence. The eye witnesses were subjected to gruelling cross-examination and the defence has not been able to spin out any infirmity or discrepancy which may render their evidence unworthy of reliance. We do not find any inconsistency in the evidence of the eye witnesses who happened to be the headmaster and other teachers besides contractor executing some work in the school so as to create a doubt in their testimony. The omission/discrepancy which do not go to the root of the matter and shake the basic version of the witnesses, cannot be annexed with undue importance. The omission/discrepancy which do not go to the root of the matter and shake the basic version of the witnesses, cannot be annexed with undue importance. The manner in which the medical evidence and the ballistic expert evidence fit in with the earliest version given by the eye witness in the F.I.R. and corroborated by other eye witnesses in material particulars, in our view, justify placing implicit reliance on the evidence of the eye witnesses. 22. Indubitably, the credibility of a witness has to be decided by referring to his evidence and finding out as to how he has faired in cross examination and what impression is created by his evidence taken in the context of the other facts of the case. In estimating and evaluating the eye witnesses, we find that they are consistent with one and another so far as the place of occurrence, the manner of assault, the weapon used in the commission of the offence by the accused and thereafter kicked the deceased so as to ensure that he has died and nothing brought out in their cross examination to impeach their testimony. The aforesaid oral evidence fully corroborates the medical evidence. All the eye witnesses including first informant, have detailed the entire prosecution case, how the accused has done to death the deceased, a crippled teacher with a gun-shot. Their evidence has remained unshaken and defence could not point out anything to discredit their testimony. The evidence of these eye witnesses coupled with recovery of weapon of offence from the accused, medical evidence confirming the exit and entry wounds causing injury to vital organs with a gun-shot resulting in death of the deceased and further F.S.L. report affirmed the cartridge case seized alongwith rifle to have been fired through the same rifle, unmistakably connects the appellant with the crime i.e. murderous assault on the deceased which resulted in his death. 23. Ordinarily, the value of the medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. 23. Ordinarily, the value of the medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. 24. In case `Mohinder Singh v. State of Punjab, 2003 AIR SCW 5033, the Apex Court while dealing with the acceptability and reliability of the evidence of the eye witnesses held as under:- "In cases where eye witnesses evidence is acceptable, all other evidences that might have been produced by the prosecution recede to the background." 25. Similarly in case `Harijana Narayana v. State of Andhra Pradesh 2003 AIR SCW 3606, the Apex Court in dealing with credibility of the witnesses held as under:- "The evidence, in each case, has to be considered from the point of trust-worthiness and from the angle as to whether it inspires confidence in the mind of the Court to accept and that the question of credibility and reliability of a witness has to be decided with reference to the way he fared in cross-examination and the nature of impression created in the mind of the Court." 26. Applying the aforesaid tests to the evidence produced in the case, we are of the firm view that the simplicity to the testimony of the eye witnesses reflects naturalness and truthfulness. The presence of the witnesses on spot on the day of occurrence was on account of being the headmaster and teachers in the school on duty at the relevant time. The presence of the witnesses on spot on the day of occurrence was on account of being the headmaster and teachers in the school on duty at the relevant time. More so, when the eye witnesses account is corroborated by material particulars by proved recovery of the weapon of offence and its use in the commission of the offence proved in the F.S.L. report coupled with medical testimony as to the cause of the death established beyond any pale of doubt that the death of the deceased was caused by the accused with a gun shot in a cruel manner and thereafter kicked his dead body to ensure that the deceased has died, who happens to be crippled by his both legs and could walk only with stick. 27. Mr. Sakal Bhushan, learned counsel appearing for the appellant, vehemently stated that though the trousers of the deceased were also seized alongwith other wearing apparels by the investigating officer but have been deliberately kept back and was not sent to the F.S.L. to ascertain if it contains semen stains particularly when it is found in the consistent evidence of the eye witnesses that when the accused entered the premises of the school with rifle in his hand, he shouted in loud voice that the deceased had been commiting sexual intercourse with his wife and the headmaster having not taken any action, would not spare the deceased and condone his act. Adverse inference under section 114 of the Evidence Act is drawn against the prosecution. 28. Investigating Officer, PW Abdul Qayoom Mirza, in his evidence admitted to have not sent the trousers of the deceased though seized vide EXPW11-A during investigation because it did not have the blood stains. According to the investigating officer only shirt and coat which were blood stained were sent for analysis to the F.S.L. 29. Assuming that there is a lapse on the part of investigating officer in not sending the trousers alongwith other wearing apparels to the Analyst, it would not in any manner affect the credibility of the prosecution in view of the emphatic denial of the accused in a statement under section 342 Cr.P.C. that he had neither complained to the headmaster nor shouted when entered the premises of the school on the day of occurrence that the deceased had sexual inter-course with his wife. There was a total denial of this fact by the accused in his reply to the facts put to him under section 342 Cr.P.C. This contention of the appellants counsel is, factually, untenable in view of the overwhelming evidence produced by the prosecution and proved satisfactorily and sufficiently that it was the accused and accused alone who caused the death of the deceased with gun-shot in the school premises in the presence of the headmaster and other teachers who were on duty at that time and the contractor- Khursheed Ahmed Katoch who was executing work through labour under the order of the Block Development Officer. 30. It was next contended by Mr. Bhushan that the stick which is alleged to be used by the deceased for walking as he was crippled by both the legs and the chapels he was wearing having not been recovered and seized by the investigating officer further leaves a serious dent in the prosecution case and renders it redolent with doubts and suspicions. 31. The investigating officer in his cross examination categorically stated that the stick was not found on the spot and he also did not enquire about it. As regards the chapels, his evidence is to the effect that one shoe was there in the feet of the deceased perhaps it may have been given to his heirs. The non-seizure of the stick and the shoe of the deceased from the place of occurrence by the investigating officer has no adverse bearing on the prosecution case though it may speak of negligence of the investigating officer when the accusations against the accused have been established by unimpeachable evidence of the eye witnesses whose presence on spot was natural and probable on account of their position and status at the relevant time when occurrence took place. The accused was arrested by the investigating officer and the former had produced the rifle, the weapon of offence. In the report of the expert to whom the rifle alongwith empty cartridge case was sent for examination, it is clearly indicated that the said rifle was found in normal working condition and the empty cartridge case was found to have been fired through the said rifle prior to its receipt in the Laboratory. 32. Mr. Bhushan further contented that written report in english by Mohd. 32. Mr. Bhushan further contented that written report in english by Mohd. Hussain Deng the then Headmaster, High School Pogal, sent to Police Post Ramsoo through Ghulam Mohd.- Peon, is missing, which further renders the prosecution case highly doubtful. 33. It is significant to point-out that PW- Mohd. Qayoom Mirza, investigating officer, in his evidence unambiguously stated that Ghulam Mohd came to the police post Ramsoo and lodged a verbal report and thereafter given a report in writing. It is also in his evidence that the verbal report has been entered in the Roznamcha on 06.12.1996 as report No. 11 at 17 hours. He, however, clarified in his cross-examination that the written report of the Headmaster is not on record in the challan but is in the C.D. file since the same was given after the verbal report made by Ghulam Mohd which was entered in the Roznamcha. 34. No attempt seems to have been made during trial to bring on record of the challan file the said written report from the C.D. file. Therefore, the appellants contention with regard to the written report of the Headmaster missing cannot be said to be well founded, to be accepted. Even if the said written report is not placed on the challan, the case having been registered on the verbal report of Ghulam Mohd-Peon who also happens to be an eye witness of the occurrence, it would neither make any difference nor would detract the testimony of the eye witnesses which has been assessed on its own merit. 35. Another limb of argument put across by Mr. Bhushan is that even if it is believed that the accused has caused the murder of the deceased by a gun-shot, the conviction could be altered from section 302 to section 304 Part-I RPC as the same has been committed under grave and sudden provocation, where the deceased was found indulging in sexual activities with his wife, thus, created an intolerable situation. 36. This plea also, in our view, is without any legal force to merit acceptance, firstly, the accused had denied in his statement under section 342 Cr.P.C. that the deceased had any sexual relationship with his wife or he had ever complained about such act of the deceased to the headmaster- Mohd. 36. This plea also, in our view, is without any legal force to merit acceptance, firstly, the accused had denied in his statement under section 342 Cr.P.C. that the deceased had any sexual relationship with his wife or he had ever complained about such act of the deceased to the headmaster- Mohd. Hussain Deng; secondly, the accused had entered the premises of the school actuated by a criminal intention to cause the murder of the deceased and being an ex-armyman fired from a blank range from his backside causing injury to lung and liver leading to severe hemorrhage resulting in his instant death. The intention of the deceased to cause the murder of the deceased is further gatherable and strengthened from the fact that in order to ensure that the deceased had died, went upto the dead body and kicked it several times. This clearly proves that the accused left the premises after assuring himself that the deceased has died. So this act of the accused in causing death of the deceased cannot be said to under grave and sudden provocation so as to fall within the purview of Exception 1 of section 300 R.P.C. 37. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the court to be apprised of what the indicated person has to say about the circumstances pitted against him by the prosecution. Answer to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminating circumstances. In all such cases the court gets the advantage of knowing his version about those aspects and it helps the court to effectively appreciate and evaluate the evidence in the case. 38. Sub-section (3) of section 342 of the Code of Criminal Procedure contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. 38. Sub-section (3) of section 342 of the Code of Criminal Procedure contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words "may be taken into consideration in such enquiry or trial" in sub-section (3) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding. 39. On the closure of the prosecution evidence, the accused was examined under section 342 Cr.P.C. and he denied to have stated that the deceased had illicit relations with his wife or ever complained to the headmaster about this prior to occurrence. In view of the fact that the accused neither pleaded nor accepted the prosecution version about the deceased having sexual relations with his wife, the argument put forth by the appellants counsel pales into insignificance. It is not necessary that a husband should have been hot tempered or hypersensitive to lose his equanimity by witnessing such scenes. Any ordinary man with normal senses or even sangfroid would be outraged at such a scene. But this fact has neither been found proved either in the statements of defence witnesses produced by the accused/appellant nor in his own statement under section 342 Cr.P.C. 40. We are, therefore, not inclined to afford to the appellant accused benefit of Exception 1 to Section 300 RPC. There can be little doubt that if the accused had witnessed any such scene viz., his spouse has sexual intercourse with the deceased, his mind would have become suddenly deranged. 41. The evidence provided by defence witnesses namely Ghulam Rasool and Abdul Hamid Katoch, are general in natural and are of no avail to the appellant. 42. The cumulative effect of the guilt-pointing circumstances legitimately flowing from the ocular testimony of the eye witnesses corroborated in the medical testimony and the other incriminating circumstances i.e., the recovery of weapon of offence and the report of the F.S.L. to have been used in the commission of offence, in our considered opinion, is such that the Court can conclude not that the accused may be guilty but must be guilty. The prosecution has succeeded in proving that the accused had caused the murder of the deceased with a gun-shot in a calculated and diabolic manner. The prosecution has succeeded in proving that the accused had caused the murder of the deceased with a gun-shot in a calculated and diabolic manner. He did not take a chance that the deceased be left with injuries alone and to ensure that the deceased has died, kicked his body several times thereafter. 43. We are not at all impressed with the series of trivialities into which appellants counsel entangled himself and magnifies minor militating circumstances to persuade us that there was something fishy in the investigation and resulted the prosecution case doubtful. 44. On the entire concatenation of the evidence of the eye witnesses including that of Khursheed Ahmed Katoch-Contractor, an independent witness, the evidence of above two doctors and other surrounding circumstances, we fully agree with the conclusion arrived at by the learned Additional Sessions Judge, Ramban, in the impugned judgment. The appeal is, therefore, dismissed. The appellant is on bail, his bail bond shall stand cancelled and be taken into custody to serve out the sentence. 45. Both the appeal as well as the reference made by the trial court are disposed of accordingly.