J.P. Singh, J. 1. Mst. Bakhti wife of Gani Lone, Ghulam Mohd Lone alias Gulla Lone, her son, and Mohammad Yaseen Peer, their guest, died of the bullet injuries fired through a high velocity Fire arm, in the compound of PW17-Sultan Lones house, situated at Gazrayal Shah Mohalla Kralpora, Kupwara, on October 23, 1998 at about 7.30 p.m. 2. Investigation carried out in FIR no. 141/1998, registered under Sections 302 RPC, 7/25 Indian Arms Act in this respect, on a source report indicating killing of three persons by an armed person with his illegal weapon, culminated in the filing of a Final Police Report under Section 173 Cr.P.C against three persons, namely, Sultan Ganai, Ahmad Lone and one Ahad Lone, with Judicial Magistrate First Class Kupwara, who committed it to the Sessions Court at Kupwara, the trial Court. 3. The prosecution story, as unfolded in the Final Police Report, is that PW-11 Mst. Gulshan, married to Ghulam Mohammad Lone, one of the deceased, returned annoyed to her parental house in view of the quarrel she had with PW-2 Bashir Ahmad, her husbands brother. A Meeting was thereafter arranged at Sultan Lones house to resolve the dispute, which concluded with the settlement that Mst. Gulshan would return to her in-laws house. 4. Mst. Bakhti, Ghulam Mohd. Lone and the family friend Yaseen Peer, were on their way back home, when they were fired at in the compound of Sultan Lones house by the appellant with AK-56 rifle. 5. According to the prosecution story, the meeting arranged for settling Mst. Gulshans matrimonial dispute had concluded and the members present in the meeting were still sitting in the room that the appellant threw in the room, from its door, two Pherns (Kashmiri Gowns usually worn in winters), which belonged to Ahmad Lone alias Am-Machloo, an accused named in the Final Police Report, and one Mohammad Lone. A Gun was, at that time, seen slinging from his shoulder underneath the Phern he was wearing. 6. The incident is reported to have taken place pursuant to a conspiracy hatched by three persons, namely, Sultan Ganai, Ahmad Lone alias Am-Machloo and Ahad Lone, who, though married, was hell bent to contract marriage with Sultan Lones daughter PW-11 Mst. Gulshan, with whom he is stated to have developed illicit relationship. 6. The incident is reported to have taken place pursuant to a conspiracy hatched by three persons, namely, Sultan Ganai, Ahmad Lone alias Am-Machloo and Ahad Lone, who, though married, was hell bent to contract marriage with Sultan Lones daughter PW-11 Mst. Gulshan, with whom he is stated to have developed illicit relationship. In furtherance of the conspiracy, Ahmad Lone had procured AK-56 Rifle from PW-9 Abdul Satar Mir, Special Police Officer attached as Security Guard with Chowdhary Jalal-Ud-Din and delivered it to the appellant, who is stated to be a surrendered militant, to kill Gulshans husband. 7. Ahad Lone, the third accused named in the Final Police Report, was discharged by the trial Court vide its order of May 26, 2004 as no material was found to have been collected by the Investigating Agency against him during investigation of the case. Appellant Sultan Ganai, and Ahmad Lone, the other accused were, however, tried on their pleading, `Not Guilty, to the charge framed under Sections 302/34 RPC and 7/25, 27 Arms Act. To prove its case, the prosecution examined 18 out of 22 witnesses listed in the Final Police Report. 8. After appreciating and evaluating the evidence and the material produced in the case, the trial Court, acquitted Ahmad Lone alias Am-Machloo finding the prosecution to have failed to prove any case against him. The appellant was, however, convicted and sentenced under Section 302 RPC, to Imprisonment for Life and fine of Rs. 2000/- for committing the murder of three persons, besides to Rigorous Imprisonment for seven years and fine of Rs. 1000/- under Section 27 of the Arms Act, vide judgment and order of November 17, 2006 of the trial Court. 9. Aggrieved by the judgment and order of the trial Court and seeking Review thereof through an application received in this Court through Deputy Superintendent Central Jail, Srinagar, the appellant sought legal aid too in this respect. His application was registered as Criminal Appeal No. 12/2006. He appears to have filed a regular Appeal too through his counsel, questioning the sentence awarded to him by the trial Court, which stands separately registered as Criminal Appeal no. 3/2007. Learned Sessions Judge too has made Reference for confirmation of the sentence awarded to the appellant. 10. His application was registered as Criminal Appeal No. 12/2006. He appears to have filed a regular Appeal too through his counsel, questioning the sentence awarded to him by the trial Court, which stands separately registered as Criminal Appeal no. 3/2007. Learned Sessions Judge too has made Reference for confirmation of the sentence awarded to the appellant. 10. We have perused the trial Court records, waded through the evidence recorded by it with the assistance of learned counsel for the parties and considered the submissions made at the Bar in the light of the judgments cited in support thereof. In holding the appellant responsible for firing at the deceased with AK 56 Rifle and committing their murder, the trial Court has relied primarily on the evidence of PW-2 Bashir Ahmad Lone, deceased Mst. Bakhtis son. 11. PW-1, another son and PW-3, the husband of Mst. Bakhti have been found to have corroborated and supported PW-2s version of the occurrence. 12. Factum of appellants firing at the deceased from AK-56 Rifle, seized vide EXPW1/6, pursuant to the appellants disclosure, recorded in the Disclosure Statement EXPW1/5, has been found proved on the basis of the statement of PW-20, Mohd Shafi, who, on examining the seized Rifle and the five empties of AK Rifle, recovered from the place of occurrence vide EXPW-1/1, had found the empties to have been fired through the seized AK-56 Rifle, proving the Report EXPW-20 issued by him in this behalf, and that of PW-19 Dr. G.N. Mir, who had opined the injuries, found on the person of the deceased, as bullet injuries fired from a high velocity Fire Arm. 13. Perusal of EXPW-22/8, the letter written by S.H.O. Police Station Trehgam to the Deputy Superintendent of Police Hqrs Kupwara requesting him to produce the seized empties, AK-56 Rifle recovered at the instance of the appellant, and one AK-Magazine with twenty Live Rounds, letter dated 23.11.1998 written by Dy. S.P. Hqrs Kupwara to the Executive Magistrate Kupwara, letter dated 23.11.1998 from Dy. Superintendent of Police Hqrs Kupwara to the Director Forensic Science Laboratory, Dal Lake, Srinagar, and Tehsildar, Executive Magistrate 1st Class Kupwaras communication EXPW-M/20, reveal that the imprint embossed on the seal, with which the five empties of AK Rifle seized on spot vide EXPW-1/1, were sealed in a packet, had not been reflected or indicated anywhere in the documents mentioned hereinabove. The Executive Magistrate First Class too has not indicated in his communication EXPW-M/20 about the existence or otherwise of the embossed impression, or for that matter, the existence or otherwise of any Seal on the packets, which had been re-sealed by him. 14. There is no other evidence or material on records on the basis whereof the prosecution may be said to have proved the packets containing the five empties, recovered from the place of occurrence, to be the same packet which had been produced before the Magistrate for Re-sealing. EXPW-M indicates the five empty Cartridges to have been kept in packet no.1, marked as EXB. The impression of the seal found on EXPW1/1, on the other hand, is shown as Mark (G). 15. The empties seized from the place of occurrence on 24.10.1998 and shown to have been sealed with imprint Mark (G) vide EXPW1/1 appears to have remained in the police custody for one month. There is no evidence on records on the basis whereof inference may be drawn that the empties, which had been produced before the Executive Magistrate First Class were the same which had been seized on spot vide EXPW1/1, for, the Executive Magistrate, before whom the seized empties are stated to have been produced for re-sealing has neither testified nor indicated in his communication EXPWM/20 to the Director FSL Srinagar, about the specimen mark found imprinted on the seals of the packets which had been produced before him for re-sealing. EXPWM/20 contains only the impression of the imprint on the seal which had been used by the Magistrate at the time of re-sealing the packets. Likewise EXPW20, the report of PW-20, Mohd. Shafi, Scientific Officer Ballistics Division, Jammu and Kashmir Forensic Science Laboratory Srinagar, too does not indicate about the existence of imprint (G) on the seals on the packets, which had been re-sealed with the Executive Magistrates seal, carrying a different impression of Re-sealing. This is so because when the re-sealed packets were opened by the Scientific Officer, it was not containing any sealed packet but, on the other hand, was carrying the material i.e. five fired cartridge cases. 16. This is so because when the re-sealed packets were opened by the Scientific Officer, it was not containing any sealed packet but, on the other hand, was carrying the material i.e. five fired cartridge cases. 16. The in-ordinate delay in retention of the five cartridge cases recovered from the place of occurrence by the police without taking any steps to preserve their identity, by producing these for re-sealing before any Executive Magistrate, too casts doubt on this piece of the prosecution evidence, that the empties sent to the Forensic Science Laboratory were the same which had been recovered from the place of occurrence, for the possibility of fiddling with the empties when these had remained with the police for a month, cannot be ruled out. 17. Learned Deputy Advocate General had no explanation to tender as to why the empties seized from the place of occurrence had not been produced before any Magistrate to prove that the seized material had been preserved until its examination by the Forensic Science Laboratory, ruling out chances of fiddling therewith, to determine as to whether or not these empties had been fired through the rifle which is stated to have been recovered at the instance of the appellant who is stated to have been carrying it at the time of the occurrence. 18. The Prosecution has thus failed to prove that the empties which had been sent to the Forensic Science Laboratory, Srinagar for its opinion as to whether these had been fired through AK-96 Rifle stated to have been possessed by the appellant, were the same which had been seized from the place of occurrence. 19. We will now examine the proof or otherwise of appellants Disclosure Statement recorded by the police vide EXPW1/5 and the recovery of AK-56 Rifle and a Magazine carrying 20 live cartridges pursuant thereto, another piece of evidence on which the prosecution relies to support its case. 20. Before proceeding further, it becomes necessary to refer to the text of the Disclosure Statement which the appellant had made in Kashmiri language, when he was in police custody. 21. The English translation of the Kashmiri version of the Disclosure Statement, made by the appellant, as it so appears in EXPW 1/5, would be as follows: - "The Gun with which I have fired bullets had been given to me by Am-machloo. 21. The English translation of the Kashmiri version of the Disclosure Statement, made by the appellant, as it so appears in EXPW 1/5, would be as follows: - "The Gun with which I have fired bullets had been given to me by Am-machloo. The Gun has a loose wooden butt with something engraved on it. This Gun has been kept by me secretly at a place near Am-machloos house which I can identify and recover." 22. Dissection of the above statement to cull out the information relating distinctly to the fact thereby discovered, the admissible portion of the appellants statement in terms of Section 27 of the Evidence Act Samvat 1977, would thus be as follows: - "I have secretly kept the Gun at a place near Am-machloos house which I can identify and recover." 23. The Disclosure Statement-EXPW 1/5, does not bear any date and this omission has been explained by the Investigating Police Officer to be inadvertent. PW-1 Ali Mohd. Lone, the only civilian witness to the Disclosure Statement, the others being the Police Constables, while deposing about the manner in which the appellant had made the Disclosure has stated that the appellants Disclosure Statement had been recorded by the police before his arrival in the police station when the appellant had been shifted back to the lock up. On his reaching Police Station, the appellant was taken out of the lock up to repeat the Disclosure he had made in his absence. He further says that he had signed the Disclosure Statement at the place of the recovery of the weapon of offence, and not at the Police Station where the appellant is shown to have made the Disclosure Statement. Regarding the recovery of the weapon of offence and the ammunition, he says that the Investigating Police Officer (SHO Police Station Trehgam) was not present on spot and the recovery had been effected by ASI Tragpora, which is a statement contrary to the records indicating the Seizure memo of the Rifle and the ammunition to have been prepared by the SHO. No witness from the locality was present at that time. He has shown his ignorance about the sealing of the weapon of offence and the ammunition by the police on spot. 24. No witness from the locality was present at that time. He has shown his ignorance about the sealing of the weapon of offence and the ammunition by the police on spot. 24. In view of the categoric statement of PW-1 that the Disclosure Statement had not been signed by him at the Police Station which stood already recorded before his arrival at the Police Station where the appellant had only repeated his earlier statement, it becomes difficult for us to believe the statements of PWs-14 and 15 who say that the appellant had made the Disclosure Statement in presence of PW-1. Omission of the Investigating Police Officer to record any date on the Disclosure Statement cannot thus be accepted as an inadvertent omission. Taking into consideration the absence of any date on appellants Disclosure Statement EXPW 1/5, the in orderly manner in which the signatures and particulars of PWs-1, 14 and 15 appear on the document, in the light of the categoric statement of PW-1 that he had not signed EXPW 1/5 at the Police Station, the prosecution cannot be said to have proved the appellant to have made the Disclosure Statement appearing in EXPW 1/5 at Police Station Trehgam because the evidence produced by the prosecution does not inspire confidence. 25. In view of the failure of the prosecution to prove the Disclosure Statement of the appellant, the resultant recovery of the weapon of offence and ammunition at his instance therefore becomes meaningless for the evidence of the recoveries would be relevant for its use against the appellant only if it was preceded by a validly recorded Disclosure Statement in terms of Section 27 of the Evidence Act. 26. In view of the above discussion, we are of the view that the statement of PW-20 Mohd. Shafi and proof of his report EXPW 20 indicating the empties sent to him for examination to have been fired through AK-56 Rifle cannot be used against the appellant as incriminating evidence in view of the failure of the prosecution to prove that the five empties seized from the place of occurrence were the same which had been produced before the Magistrate and later sent to the Forensic Science Laboratory, and that the appellant had made the Disclosure Statement about his knowledge of the weapon of offence. 27. 27. Such being the case, the next question which would, therefore, fall for consideration is as to whether or not the prosecution had produced any other acceptable evidence on records to justify the appellants conviction for the murder of three persons. In order to examine the question, perusal of the statements of those who were present at the time of the meeting and were accompanying the deceased at the time of the occurrence, becomes necessary. 28. We would, therefore, proceed to examine their statements. 29. PW-1 Ali Mohd Lone, the son of Mst. Bakhti deceased and brother of Ghulam Mohd. Lone deceased, has testified to (1) Mst. Gulshans returning annoyed to her parental house, (2) the convening of meeting at Sultan tones house for settlement of the matrimonial dispute on 23rd October, 1998, (3) appellants presence in the house of Sultan Lone after the settlement of the dispute, (4) appellants meeting Mst. Gulshan in the Kitchen, (5) throwing of two Pherns by the appellant in the room where the members of Sultan Lones family and Abdul Ganis family who had participated in the meeting, were sitting, and (6) on hearing the firing of shots and leaving his minor daughter in the room PW-1s reaching immediately on spot to find his mother, brother and Mohd Yaseen riddled with bullets in the compound of Sultan Lone. 30. Nothing has been brought out in his cross-examination to dispute either about his presence on spot or about the matters he has testified to. 31. PW-2 Bashir Ahmed Lone, the other son of Mst. Bakhti deceased, who is stated to have become the cause of Mst. Gulshans getting annoyed and returning to her parental house, has, while supporting PW-1 on all material particulars he had deposed to, has added having seen the appellant firing at his mother, brother and the family friend from near the place of occurrence, i.e., from the store house located in the compound of Sultan Lones house, from the gun he was carrying. He had seen the occurrence in the light of the lantern (chimnee), which his brothers wife had given to deceased Ghulam Mohd. Lone who was leading the trio back home. 32. He had seen the occurrence in the light of the lantern (chimnee), which his brothers wife had given to deceased Ghulam Mohd. Lone who was leading the trio back home. 32. This witness has stood the test of cross-examination as nothing substantial could be elicited therefrom to discredit his version of having seen the appellant firing from his gun when he along with his mother, brother and family friend Mohd Yaseen were on their way back home after the settlement of the matrimonial dispute of Mst. Gulshan at Sultan Lones house. 33. PW-3 Gani Lone, the husband of deceased Bakhti and father of Ghulam Mohd Lone, supports the prosecution story insofar as it relates to Am-Machloos efforts and invitation to him and his family members to come to Sultan Lones house for settlement of Gulshans matrimonial dispute. Though he had not participated in the meeting yet he has been watching all this from his house situated nearby Sultan Lones house. He had reached on spot immediately after hearing firing of shots to find the injured breathing their last in the compound of Sultan Lone. 34. PW-19 Dr. Ghulam Mohd Mir has testified the deceased to have received injuries from the bullets fired through a high velocity arm, which had resulted in their death. The injuries found on the person of the deceased by the doctor are as follows: - "1. Mst. Bakhti. 1. A wound of entrance on the right side of head just behind the right ear with exit left side head, occipital region. 2. A wound of entrance on the right side of chest with exit on back side adjacent infra scapular region. 2. Ghulam Mohd. Lone. 1. A wound of entrance right side of head just in front of right ear with exit left side of head, parietal region. 2. A wound of entrance on right side elbow with exit medial aspect and a wound of entrance on right side of thigh. 3. Mohd. Yaseen. 1. A wound of entrance on the right side of flank with adjacent renal angle with exit left side of flank on anterior aspect." 35. The witness has opined, Mohd Yaseen, Mst. Bakhti and Ghulam Mohd. Lones death due to hemorrhagic shock following the bullet injuries by high velocity Firearm leading to cardio pulmonary arrest. 36. PW-11 Mst. Mohd. Yaseen. 1. A wound of entrance on the right side of flank with adjacent renal angle with exit left side of flank on anterior aspect." 35. The witness has opined, Mohd Yaseen, Mst. Bakhti and Ghulam Mohd. Lones death due to hemorrhagic shock following the bullet injuries by high velocity Firearm leading to cardio pulmonary arrest. 36. PW-11 Mst. Gulshan, while supporting the prosecution story has admitted the presence of the appellant at her house on October 23, 1998, his act of throwing two Pherns in the meeting room, having taken tea offered by her in the kitchen And assuring her that her husband would divorce her today. 37. This all had happened after the two families had agreed for Mst. Gulshans going back to her in-laws house to live and reside with Ghulam Mohd. Lone, her husband. 38. Nothing comes out from the cross-examination of this witness which may discredit her above mentioned testimony. 39. Projecting appellants innocence, his learned counsel urged that PW-2s statement was un-worthy of credence, in that in view of the admitted case of the prosecution that there was complete darkness at the place of occurrence, PW-2 could not have seen the occurrence and the version of the PW-2 that he had seen the occurrence in the lantern light was an afterthought and even otherwise unbelievable. 40. We have examined the contention but are unable to find any substance therein, in that, the consistent version of PW-1 and PW-2 that on Mst. Bakhtis asking, a lantern had been supplied by PW-1s sister-in-law who was managing the cattle with a lantern in her hand nearby and Ghulam Mohd Lone, the deceased was leading the other two and PW-2, with the lantern with him, has remained unchallenged during the cross-examination of the witnesses. 41. That apart, there is not even a whisper in the cross-examination of PW-2 questioning his capability to identify the appellant firing at the deceased with the Rifle he was carrying. 42. As no effort has been made to bring on records, requisite facts needed to discredit the statement of PW-2 and his capability to identify the appellant on spot, we do not find any material on records to disbelieve the PW-2s version of the occurrence and doubt his capability to identify the appellant in the lantern light. 43. The Investigating Police Officers omission to seize the lantern which the deceased Ghulam Mohd. 43. The Investigating Police Officers omission to seize the lantern which the deceased Ghulam Mohd. Lone had been carrying with him at the time of the occurrence, would not, in our opinion, discredit, in any way, the vivid, consistent and natural version of the occurrence which PW-2 has narrated. 44. Conscious of the fact that the prosecution witnesses are related to the deceased, we minutely examined their statements and find that the prosecution has succeeded in establishing appellants presence at Sultan Lones house on October 23, 1998, before the occurrence, his carrying a gun with him under his phern and despite settlement of Gulshans matrimonial dispute of her going back to her in-laws house, assuring her that her husband would divorce her on that day itself. 45. We further find that the prosecution has successfully proved by its evidence led during the trial of the case that the appellant, with intention to commit murder, had, fired from his gun at Mst. Bakhti, Ghulam Mohd. Lone and Mohd. Yaseen who died on spot as a result of the bullet injuries fired from appellants high velocity gun, in the compound of the house of Sultan Lone. 46. We, however, do not find the prosecution to have proved the appellant to have fired from the AK-56 Rifle which has been seized in the case. 47. Accordingly, for all what has been said above, while setting aside the judgment of the trial court insofar as it convicts and sentences the appellant under section 27 of the Arms Act and acquitting him accordingly of the offence, We would uphold appellants conviction under section 302 RPC and confirm the sentence of Imprisonment for Life and fine of Rs. 2000, as awarded by the trial court. 48. Accepting Confirmation Reference No. 19/2006, we would, accordingly, dispose of the Criminal Appeals upholding appellants conviction and sentence under section 302 RPC. 49. Registrar Judicial to comply with the requirements of Section 379 of the Code of Criminal Procedure, Svt. 1989.