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2014 DIGILAW 77 (JK)

Mohamamd Shabir Code Gazi v. State of J and K

2014-02-24

MOHAMMAD YAQOOB MIR, MUZAFFAR HUSSAIN ATTAR

body2014
JUDGMENT Yaqoob Mir, J.- 1. Appellants-Mohd. Shabir Code Gazi, Raj Din and Nazir Ahmed have filed three separate appeals against judgment and order dated 15.04.2011 and 03.05.2011 passed by learned Principal Sessions Judge, Kathua. For confirmation of sentence of death and life imprisonment awarded, learned Sessions Judge has submitted the record as required in terms of Section 374 of the Code of Criminal Procedure, Svt. 1989, same is numbered as Confirmation. No.8J/2011. Appellants-Mohd. Shabir Code Gazi and Raj Din have been convicted under Section 7/27(3) Arms Act and sentenced to death with fine of Rs. 10,000/-. They have further been convicted under Section 302 RPC and sentenced to imprisonment for life and fine of Rs. 10,000/- They have further been convicted under Section 460 RPC and sentenced to imprisonment for life and fine of Rs. 10,000/-. They have also to suffer imprisonment for one year and fine of Rs.5,000/- under Sections 148/149 RPC; 2. Appellant-Nazir Ahmed has been convicted under Section 212 RPC and sentenced to imprisonment for three years with fine of Rs.5,000/-. 3. Registration of case as Crime No. 36/2002, Police Station, Bani has culminated into presentation of charge sheet (challan) to the effect that accused persons have committed the offences punishable under Sections 302/460/148/149/212 RPC and 7/27 Arms Act. Two accused persons, namely, Mohd Shabir Code Gazi and Nazir Ahmed were arrested as such produced whereas four accused, namely, Mohd Ashraf, Raj Din, Farid, Ashiq Ali were absconding. 4. Mohd Shabir Code Gazi and Nazir Ahmed were put to trial by the trial Court vide Order dated 18.12.2002 whereas on the arrest and production of accused Raj Din, charge has been framed against him on 01.03.2006. Likewise on arrest and production of another accused, namely, Ashiq Ali Bhat, charge has been framed against him on 15.08.2012. 5. The prosecution in support of its case out of listed fourteen witnesses has produced and examined listed witnesses nos. 1, 2, 4, 5, 6, 7, 8, 9, 10 and 14. The prosecution evidence has been closed vide Order dated 04.11.2010. Accused persons have been examined in terms of Section 342 RPC. They have denied complicity in the crime as such claimed to be innocent. No witness has been produced in defence. 6. 1, 2, 4, 5, 6, 7, 8, 9, 10 and 14. The prosecution evidence has been closed vide Order dated 04.11.2010. Accused persons have been examined in terms of Section 342 RPC. They have denied complicity in the crime as such claimed to be innocent. No witness has been produced in defence. 6. The factual background as emerge from the records is that on 27.11.2002, Police Station, Bani received information from reliable sources to the effect that on the intervening night of 26/27th of November, 2002atabout 11 p.m., seven militants belonging to banned organization Hizbul Mujadhadin armed with deadly weapons led by accused-Mohd Ashraf and Farid at the instance of ISI of Pakistan with the object of spreading terror and for separating Jammu and Kashmir State from India and to cause damage to the integrity of the Country, entered into the house of deceased Abdul Majid and started beating him whereas accused Mohd Shabir opened fire and injured deceased Abdul Majid, whereas other accused inflicted injuries with the butts of their rifles and thereafter fled from the scene of occurrence. On the hue and cry of family of the deceased, villagers assembled and took Abdul Majid (deceased) to Hospital located at Bani. On such information, case has been registered for the commission of offence punishable under Sections 302/460/148/149/201/212 RPC and 7/27 Arms Act. On completion of investigation, it was found by the Investigating Agency that on the intervening night of 26/27th of November, 2002, accused Mohd Shabir Code Gazi, Mohd Ashraf, Raj Din, Farid, Ashaq Ali along with two other unknown militants in furtherance of common object with criminal intention entered into the house of deceased and started beating the deceased with butts of the rifles and then tied the legs and arms of the deceased. Mohd Shabir Code Gazi opened the fire which hit the right leg of the deceased-Abdul Majid, who finally succumbed to the injuries. It was concluded that commission of the offences punishable under Sections 7/27 Arms Act and 302/460/148/149 RPC were established as against accused except Nazir Ahmed whereas offence under Section 212 RPC was established against accused Nazir Ahmed for having given shelter to another accused. 7. Charges against the accused were framed as referred to above. Finally on conclusion of the trial, accused were convicted and sentenced as detailed hereinabove. 8. 7. Charges against the accused were framed as referred to above. Finally on conclusion of the trial, accused were convicted and sentenced as detailed hereinabove. 8. Learned counsel for the appellants stated that the evidence as led by the prosecution is such which does not warrant recording of conviction at all because (i) only one witness to the occurrence, i.e., Mst. Zarina Begum, widow of deceased has been produced. Other such witnesses, i.e., sons and daughters of the deceased who were present a t the time of occurrence have not been produced; (ii) statement of Mst. Zarina Begum being relative witness in absence of corroboration, was not enough for recording conviction; (iii) Investigating Officer has not been produced as a witness; (iv) Out of the children of the deceased who were major, only one Mohd Imtiyaz son of deceased was listed as witness, but he too was not produced; (v) Other children though major have not been even cited as witnesses; (vi) Non-production of two important witnesses, i.e., Investigating Officer and Mohd Imtiyaz son of deceased has caused prejudice to the accused; (vii) Against accused-Nazir Ahmed nothing incriminating at all is forthcoming, unnecessarily conviction has been recorded against him; (viii) Conviction Could not be recorded; and (ix) Awarding of death sentence was totally unwarranted in the facts and circumstances of the case. 9. Learned AAG appearing for the respondents emphatically submitted that accused who were armed with deadly weapons have taken valuable life. All the circumstances have been established. The statement of Mst. Zarina Begum, who with her own eyes had seen the occurrence, is the most trustworthy witness. She has given actual eye account, which does not require any corroboration. Her sole trustworthy testimony was enough for recording conviction. There shall be no sympathy for gun wielding persons, deterrent sentence as has been awarded is in consonance with law. 10. Zarina Begum, who with her own eyes had seen the occurrence, is the most trustworthy witness. She has given actual eye account, which does not require any corroboration. Her sole trustworthy testimony was enough for recording conviction. There shall be no sympathy for gun wielding persons, deterrent sentence as has been awarded is in consonance with law. 10. On the perusal of the interim orders recorded by the learned trial Court, one disturbing feature has emerged, i.e., procedure prescribed under Chapter XXIII of the Code of Criminal Procedure pertaining to the trial before the Court of Sessions has not been followed strictly, i.e., after closure of the prosecution evidence and on examination of the accused in terms of Section 342 RPC, the provisions of Section 273 Cr.P.C. were to be followed, which would provide that in case of no evidence, acquittal was to be recorded, otherwise the provisions of Section 274 Cr.P.C. were to be followed, i.e., after trial Court would record that acquittal is not warranted then accused were to be called upon to enter on their defence and adduce any evidence as they may have in support thereof. 11. Order recorded on 27.12.2010 in Urdu version would suggest that statements of the accused were recorded under Section 342 RPC and the case was adjourned for proceeding under Section 273 Cr.P.C. Then it has been added that the accused were not inclined to produce any defence witness. What the learned trial Court was required to do was that it should have heard prosecution and defence and then to say it is not a case of no evidence, thereafter in terms of Section 274Cr.P.C. should have asked the accused to enter upon defence, which he has not done. Though, same loses significance in view of the statement of learned counsel for the defence that he would not produce any witness in defence, but procedure has to be followed strictly. 12. Re-appreciation of evidence is necessary for appreciating the arguments of learned counsel for the parties in its right perspective. For such re-appreciation, material depositions precisely are required to be noticed. 13. Out of two listed witnesses to the occurrence Mst. Zarina Begum widow of Abdul Majid (deceased) has been produced and examined, whereof Mohd Imtiyaz (son) has not been produced. 14. PW-Zarina Begum (widow of deceased) has stated that deceased was her husband. For such re-appreciation, material depositions precisely are required to be noticed. 13. Out of two listed witnesses to the occurrence Mst. Zarina Begum widow of Abdul Majid (deceased) has been produced and examined, whereof Mohd Imtiyaz (son) has not been produced. 14. PW-Zarina Begum (widow of deceased) has stated that deceased was her husband. On 26.11.2002 at about 10 P.M., accused present in the Court came to her house and voiced from outside Abdul Majid to open the door as some CRPF Sahib (personnel) have come. Her husband replied that his rifle has been deposited in the Police Station Bani, how he can open the door. Accused in Kashmiri language were asking for opening the door. The militants after breaking the window came inside the room. Accused persons present in the Court started beating her husband. Accused Shabir present in the Court started beating her husband with rifle and was alleging that deceased is working as CID. They had also asked the deceased to have last drink of water. Her five children were present there. Accused were beating her husband excessively, her children started weeping. Accused talked on wireless set and said that wife and children are weeping what to do. Received the reply, they have been asked to do something why not done till then. Then accused Shabir Ahmed picked up one string and fastened the arms of the deceased and then took up another string of like nature and tied the legs of the deceased. She along with her children started weeping and requested the accused to set free the deceased and licked feet of the accused, but accused did not agree to it. They kept the deceased in standing condition in front of the cot. Accused Shabir fired twice on the legs of the deceased who fell down on the ground. Thereafter accused went out of her house and closed the door from outside. After five minutes, they opened the door and asked them to get the deceased treated. She went to Nazir Ahmed brother of the deceased who along with other people of the area came and carried deceased on cot to Hospital at Bani for treatment, remained there for the night and her deceased husband died at 8 a.m. Thereafter Police recorded her statement on 31.11.2002. On the cross-examination stated that she is illiterate, knows Urdu and does not know English. On the cross-examination stated that she is illiterate, knows Urdu and does not know English. Accused fired inside the house. Before opening fire, accused did lit the lamp. It is incorrect that when accused Shabir fired, only Shabir, Farid and Gula were inside, but four persons had come inside, she did not know how many were outside. Shabir was known to her earlier. He belongs to her village and is also a relative. She had seen the rifle in the hand of Shabir on which it was written 'Laha illallah-Mohdu Rasool Ullah'. She had not seen the rifle today in the Court. Accused Shabir was wearing white clothes and had kept long hairs covered by white handkerchief. She narrated this incident to the Police. She had put her thumb impression before the Police. She went to the Police next day for registration of the case. Deceased in an injured condition during night was taken to the Hospital. It took 1/2 hour to reach Hospital on foot. She went to the Police Station on foot and thereafter police came. What proceedings were held by the police in the house is not known to her. It may be known to the children. The militants had come to her home at 10 p.m. When accused left, she called the residents of the Mohalla, but did not shout. She had called Nazir Ahmed brother of the deceased only. However, her father-in-law and villagers came on spot, she does not know their names. Lot of blood had oozed on the spot. Both the two shots had hit on the leg, i.e., the right knees of the deceased and the clothes were blood stained. Police seized the string also. She has not seen the string and clothes in the Court today. There was no enmity with the accused prior to the occurrence. When accused Shabir was beating her husband with butts of the rifle. All other persons who had come inside possessed rifles. She saw only on one rifle written as "Laha illallah-Mohdu Rasool Ullah". The witness further stated that same would have been written on other rifles also. Farid had a similar rifle. Only Shabir Ahmed opened the fire, others did not. She does not know where from Shabir was arrested. In her report, she had nominated Shabir Ahmed and Farid, names of other were not known to her. The witness further stated that same would have been written on other rifles also. Farid had a similar rifle. Only Shabir Ahmed opened the fire, others did not. She does not know where from Shabir was arrested. In her report, she had nominated Shabir Ahmed and Farid, names of other were not known to her. She does not remember whether after lodging report, she went to the Police Station or not. The report was written by constable in the Police Station. She did put her thumb impression on the report. The names of her children are Imtiyaz Ahmed, age 22 years, Jahid Bano, age 20 years, Sashita Banoo, age 15 years, Ashaq Ali age 12 years, Saida Bano age 6 years. Her children were also there. Saida was one year old and the children had also seen the occurrence. Same is not mentioned in her statement recorded under Section 161 Cr.P.C. It is written that the children were awakened. Her husband was carried on a cot by deceased Nazir Ahmed brother and Shakil Ahmed, Sher Khan, Mushtaq to the Hospital at 4.30 a.m. Same was narrated to the Police, but is not mentioned in the statement recorded under Section 161 Cr. P.C. Shabir accused had a torch in one hand and rifle in another hand. When accused fired, at that time lamp was lit and torch was put off. PW- Dr. B.S. Pathania, BMO, Bani has stated that on 27.11.2002, injured Abdul Majid was admitted for treatment in the Hospital. He was not fit to give statement. During post-mortem following injuries were found- "1. Two number of wounds over front of right knee joint each measuring 1 cm x 1 cm and distance between two wounds was about 2 cms. The margins of wounds were irregular, inverted and blackened. Clotted blood was present over these wounds. 2. A wound 7 cm x 3 cm over back of the right knee joint (popliteal foss) (wound of exist). The margins of wound were lacerated, irregular and averted. Underlying muscular and other tissues were evulsed out. 3. There were two ligature marks (of rope) first 6 cms above the upper border of right knee joint and the second 10 cms below the lower border of the right knee joint. The area between the two ligature marks was grossly swollen and bluish colour. The eyes were closed, pupils dilated and fixed. 3. There were two ligature marks (of rope) first 6 cms above the upper border of right knee joint and the second 10 cms below the lower border of the right knee joint. The area between the two ligature marks was grossly swollen and bluish colour. The eyes were closed, pupils dilated and fixed. Lips were quite pale. About 10 ml blood was present in the left ventricle of the heart All other chambers of heart were empty. Both the lungs were pale and shrunken. Liver and spleen were pale and shrunken. Semi-digested food was present in the stomach (300 ml.) In his opinion, deceased died because of cardio respiratory failure due to hemorrhage shock in view of gunshot injuries. Patient was brought to the Hospital at 1.00 a.m. on 27.11.2012. He further stated that range of fire could be from close vicinity, which is evidenced by the blackening of margins of the wounds of entry. To the question after how much time the smoke vanishes from around the wound, the witness stated that ballistic experts' opinion may be sought. He further stated that in the instant case excessive bleeding was the cause of death. If the patient would have been provided immediate medical aid, he may have been saved. PW Nazir Ahmed (brother of deceased) has stated that deceased was putting up separately from him. The deceased had three daughters and two sons. His house is located at a distance of 1/2 km from the house of the deceased. On 26.11.2002 at 11 p.m. when he was sleeping in his house, Mst. Zarina Begum came to his house and narrated that the militants have killed her husband. He asked her whether the children are saved, she narrated that only her husband has been killed. The witness further stated that out of seven militants, two have been identified as accused Shabir Ahmed and Gul Sheikh. He came to the house of deceased and saw Abdul Majid deceased had received gunshot injuries on his legs. He had seen the injuries on the body of the deceased. His father and brother including Shakil came on spot and took Abdul Majid to Hospital and at 8 a.m. the deceased died. The postmortem was conducted and the dead body was handed over to them. He had seen the injuries on the body of the deceased. His father and brother including Shakil came on spot and took Abdul Majid to Hospital and at 8 a.m. the deceased died. The postmortem was conducted and the dead body was handed over to them. The witness further stated that he had signed on the seizure memo EXPW-4-NA and other seizure memos EXPW-4-NA-1, EXPW-4-NA-2 and EXPW-4-NA-3. Same are true. Police also seized string vide EXPW-4-NA-4, the contents of which are true and correct. The string was the same, which was seized by the Police. Police also recovered the fired cartridge. It is marked as EXPW-4-NA-5. Police kept the ring on the sapurdnama of Bashir Ahmed vide EXPW-4-NA-6. The wife of the deceased had given the names of two militants. In cross-examination stated that they are four brothers and all are putting up separately from each other. The wife of the deceased came to his house alone at 11 p.m. His family was also inside the house. It was night and there was scare in the area. Other members of the family were also awakened. He does not know where she went thereafter. He did not go to the house of Mst. Zarina Begum in view of fear. On inquiry from Mst. Zarina Begum, she narrated the names of militants. His statement was recorded on 27.11.2002 at 2 p.m. Police had not arrested the accused till then. When he accompanied Mst. Zarina Begum, none of his family member accompanied him. Nobody from the locality was present in her house. Army camp was located at a distance of 4-5 kilometers. Nobody came there on the spot. He did not inform Army because he had gone to call other people. He did not call Chowkidar or Lamberdar on the spot. Police Station was at a distance of 400 yards away. The dead body was handed over to them at 10 a.m. Some documents were signed on spot. He had not seen the fired cartridges in the Court. PW Hans Raj, Patwari Halqa has stated that on 29.10.2003 he was posted at Patwari Halqa Sandroon. He prepared document EXPW-10-HR. The record of Khasra no. 1421/43 has been brought and it was true. He prepared EXPW-10-HR-1 on the identification of HC-Ashok Kumar. He did not see the dead body. He has no personal knowledge about the factual position. PW Hans Raj, Patwari Halqa has stated that on 29.10.2003 he was posted at Patwari Halqa Sandroon. He prepared document EXPW-10-HR. The record of Khasra no. 1421/43 has been brought and it was true. He prepared EXPW-10-HR-1 on the identification of HC-Ashok Kumar. He did not see the dead body. He has no personal knowledge about the factual position. PW Shakil Ahmed has stated that Abdul Majid was working as private employee in the guest house in the year 2002-03. He was also working in the same guest house. Accused Nazir Ahmed and Shabir are not known to him. Accused Nazir is not his cousin. Accused never came to his guest house neither he saw accused Mohd. Shabir in an injured condition. The witness has been declared hostile. In cross-examination stated that the statement recorded u/s 161 Cr.P.C. that Nazir is militant and was giving shelter to them, is also incorrect. He had not made such statement to the Police. It is also incorrect that he was making statement to save the accused. PW Bashir Ahmed has stated that deceased was his brother. The house of deceased is half kilometer away from his house. He came to know that militants have sneaked into the house of deceased. He went there and deceased was taken to the Hospital. Blood was oozing and the deceased succumbed to the injuries in the Hospital. Police took custody of the dead body and seized the clothes. Postmortem was conducted. Seizure memo marked as EXPW-4-NA, ExPW-4-NA-2, ExPW-4-NA-3 and EXPW-4-NA-4 were prepared and their contents are true and correct. One empty cartridge EXPW-4-NA-4 has already been marked. No question in cross-examination was put to the witness. PW-Pawan Kumar has stated that he photographed the body of the deceased. The photographs 1-4 were the same and exhibited as EXPW-5. In cross-examination stated that negatives of the photographs are not available. PW-Mohd Ayub has stated that he is Class-IV employee in the Revenue Department. Abdul Majid was his neighbourer. He identified the photos. On 26.11.2002, the deceased was murdered by the militants with gunshot. The deceased was taken to Hospital. The postmortem was conducted and the dead body was handed over to Nazir Ahmed. PW Ravinder Singh has stated that Mohd. Shabir is known to him. On 20.05.2003 he was posted as SHO, Police Station, Bani. The case was handed over to him for investigation. The deceased was taken to Hospital. The postmortem was conducted and the dead body was handed over to Nazir Ahmed. PW Ravinder Singh has stated that Mohd. Shabir is known to him. On 20.05.2003 he was posted as SHO, Police Station, Bani. The case was handed over to him for investigation. He prepared challan against Mohd. Ashaq, Raj Din and others. He searched for the accused on 06.09.2003 and the investigation was handed over to Uttam Chand. Again the investigation was taken over by him. He prepared challan and arrested accused. Offence under Section 212 RPC was established against accused Nazir. Offence under Sections 302/460/148/149/201 RPC and 7/27 Arms Act were established against other accused persons. In cross-examination stated that he had search for the accused but did not arrest any accused. He produced challan against the accused. He had called eyewitnesses, but did not record their statements because their statements were already recorded. None of the accused produced any rifle in this case. The witness further stated that he cannot say as to from which rile bullets were fired. 15. It is the total evidence, which has been produced by the prosecution. 16. Two star questions which emerge for consideration are as to- (a) whether on the basis of sole testimony of one eyewitness, namely, Mst. Zarina Begum widow of deceased, conviction could be recorded in absence of non-production of other eye witnesses, i.e., her children more particularly listed witness Mohd. Imtiyaz son of deceased. (b) what is the effect of non-production of Investigating Officer as witness. 17. Mst. Zarina Begum admittedly is the widow of the deceased. The occurrence had taken place in her presence. She has given true account of the happening and has categorically identified the accused, who opened the fire, i.e., Mohd. Shabir. She is also categoric in her statement that accused persons were identified by her in the Court. All those accused, who were identified is clear from the interim order dated 17.03.2008 when her statement was recorded, i.e., Mohd. Shabir, Raj Din and Nazir Ahmed. She is also categoric that it was Mohd. Shabir, who opened the fire. 18. Her credibility cannot be doubted at all. She is interested witness and relative witness, but can her statement be discarded on such account? the answer has to be in negative. After all she is the natural witness. She had no enmity with the accused. She is also categoric that it was Mohd. Shabir, who opened the fire. 18. Her credibility cannot be doubted at all. She is interested witness and relative witness, but can her statement be discarded on such account? the answer has to be in negative. After all she is the natural witness. She had no enmity with the accused. She has also stated that when her children were weeping and begging before the accused, accused had spoken on the wireless to convey the same to their Instructor, who told them to do what were asked to do, as a result thereof, Mohd. Shabir fired on the legs of the deceased. She has also seated that some of the accused after moving out of the house came back and asked them to take the deceased for treatment to the Hospital. The veracity of statement in the light of her depositions has remained to be impeached. Her deposition inspires confidence. She has not made an exaggeration. In fact has given clear and true version about behaviour and manner of the accused. 19. It is true that the children of the deceased, more particularly, Mohd Imtiyaz, who was major should have been examined as witnesses. Mohd Imtiyaz though was listed as witness, but was not produced. His non-production has not been explained nor any explanation is forthcoming as to why other children, who were present at the time of occurrence were not listed as witnesses. Such position could well be explained by the Investigating Officer, who too was not produced. Production and examination or non-production of such witnesses by no stretch of imagination could have any effect on the truthful version of Mst. Zarina Begum who's testimony does not require any corroboration. Her version regarding injuries by gunshots is fully supported by PW-Dr. B.S. Pathania, BMO. 20. The Court cannot be expected to be swayed by any situation. The dispensation of criminal justice delivery system calls for effective practical approach. The appreciation of evidence has to be in a manner so as to advance the cause of justice. When realistic and true statement is given by anyone about the true account of the happening, same cannot be ignored or termed to be insufficient for recording conviction. 21. The statement of Mst. Zarina Begum is strengthened by Dr. The appreciation of evidence has to be in a manner so as to advance the cause of justice. When realistic and true statement is given by anyone about the true account of the happening, same cannot be ignored or termed to be insufficient for recording conviction. 21. The statement of Mst. Zarina Begum is strengthened by Dr. B.S. Pathania who has categorically stated that there were gunshot injuries on the knee of the deceased who died due to gunshot injuries because of which blood oozed excessively. The version of Mst. Zarina Begum to the effect that deceased was fired upon, is fully established. 22. The sole testimony of Mst. Zarina Begum, most important witness to the occurrence, is such which inspires confidence about the actual occurrence and the offence committed by the accused Mohd. Shabir, who was identified by her at the time of occurrence. She has stated that Mohd. Shabir was known to her prior to the occurrence as he is resident of their village. She had seen the rifle in the hand of Shabir. She stated that when Shabir fired upon deceased, four persons were inside, but she did not know how many were outside. She has also stated that it is Shabir, who tied the legs and arms of deceased and also fired upon. Against Shabir, statement of Mst. Zarina Begum is such which beyond any shadow of doubt proves the commission of guilt committed by him. 23. The conviction of the accused on the testimony of the single witness is unavoidable, provided he/she is wholly reliable. From the judgment Bipin Kumar Mondal v. State of West Bengal reported in 2010 (3) Crimes 277 (SC), paragraphs nos. 25, 26, and 27 are advantageous to be quoted, same are- "25. In Sunil Kumar v. State Govt. of NCT of Delhi, 0815/2003 : (2003) 11 SCC 367, this Court repelled a similar submission observing that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134of the Evidence Act, 1872. But if there are doubts about the testimony the courts will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134of the Evidence Act, 1872. But if there are doubts about the testimony the courts will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. 26. In Namdeo v. State of Maharashtra, (2007) 14 SCC 150 , this Court re-iterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. 27. In Kunju @ Balachandran v. State of Tamil Nadu, AIR 2008 SC 1381 , a similar view has been reiterated placing reliance on various earlier judgments of this court including Jagdish Prasad v. State of M.P., AIR 1994 SC 1251 ; and Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 ." 24. Non-production/non-examination of the Investigating Officer as a witness in the present case has not caused any prejudice to the accused. The testimony of eyewitness Mst. Zarina Begum widow is such which does not leave any scope for taking any different view other than the guilt of the accused Mohd. Shabir. An illiterate lady who has seen the occurrence with her open eyes consciously and then without any improvement, embellishment exaggeration has given true account of what happened has inspired confidence to hold that her trustworthiness is not open to question. If on the testimony of such truthful witness, accused is/are not held guilt then the criminal law justice system cannot progress and the guilty will be free to the disadvantage and sufferance of the victims. 25. Now question would emerge as to whether the offence as committed is to be punished under Section 302 RPC and 7/27(3) Arms Act. 26. If on the testimony of such truthful witness, accused is/are not held guilt then the criminal law justice system cannot progress and the guilty will be free to the disadvantage and sufferance of the victims. 25. Now question would emerge as to whether the offence as committed is to be punished under Section 302 RPC and 7/27(3) Arms Act. 26. The conduct of the accused is suggestive of the fact that they never intended to kill the deceased as is inferable from the statement of Mst. Zarina Begum. Firstly when family members were weeping and begging, same was conveyed by the accused to their Instructor through wireless, but Instructor directed them to do what they were asked to do. In compliance whereof, Mohd. Shabir fired upon the legs of the deceased. There was no difficulty for him to fire on the vital organ of the deceased to do away with his life. The version of Mst. Zarina Begum that accused even asked them to take the deceased to Hospital for treatment and then version of witness Dr. Pathania that in case patient would have been provided immediate medical aid, his life could have been saved, cannot be ignored. What was the intention of the accused is clear, i.e., not to commit the murder. Otherwise, there was no difficulty or impediment for him in firing upon the vital part of the body of the deceased. In the given circumstances, the act of the accused is punishable under Section 304- II RPC. 27. Whether the weapon wherefrom two shots were fired, was a "prohibited Arm" so as to attract applicability of Section 7 and punishment under Section 27(3) of Arms Act, same has not been proved nor there is any ballistic opinion, this aspect has not been looked into by the trial Court before awarding punishment under Section 27(3) of the Arms Act. 28. It is fully proved that the appellant Mohd. Shabir has fired upon the deceased, therefore, arm has been used, in any case, will not escape the applicability of Section 5 and punishment under Section 27(1) of the Arms Act. 29. As against Raj Din, there is no evidence so as to hold him guilty because witness Mst. Zarina Begum in her statement stated that the accused Shabir, Farid and Gulla came inside, so she has not stated that Raj Din entered into the house. 29. As against Raj Din, there is no evidence so as to hold him guilty because witness Mst. Zarina Begum in her statement stated that the accused Shabir, Farid and Gulla came inside, so she has not stated that Raj Din entered into the house. Neither she had stated that he had given beating to the deceased. In absence of evidence, it cannot be said that Raj Din has taken any part in the occurrence. 30. Regarding accused Nazir Ahmed, who has been convicted under Section 212 RPC, no evidence has been brought on record. Neither there is anything on the record to show that he has given any protection or shelter to accused Mohd. Shabir. Only one witness in connection with said charge Shakil Ahmed has been produced, who has stated that accused never came to the guest house nor he saw Mohd. Shabir in an injured condition. The witness was declared hostile. He has stated that statement under Section 161 Cr.P.C. to the effect that Nazir Ahmed is militant and was giving shelter to accused is incorrect as he never made such statement. 31. It is quite disturbing how the trial Court has recorded conviction against accused Nazir Ahmed for the commission of offence punishable under Section 212 RPC when there is not an iota of evidence against him. Trial Court unfortunately appears to have been swayed as a result thereof has committed blunder in law in recording conviction against accused Nazir Ahmed under Section 212 RPC and against Raj Din under Sections 302/460/148/149 RPC and 7/27 Arms Act. 32. As against accused Mohd Shabir Code Gazi on the strength of the truthful testimony of PW-Zarina Begum, his identity, holding of rifle, opening fire, shooting the legs of the deceased are fully proved. The conviction as against him is sustainable for the commission of offence punishable under Section 304 - II/460 RPC and5/27(1) Arms Act. 33. Awarding of death sentence in the facts and circumstances of the case was impermissible. Present case even otherwise by any standard on the strength of the evidence as produced and manner in which offence has been committed does not fall within the ambit of rarest of rare case. The judgment and order of sentence impugned are not in consonance with law. 34. For the reasons detailed hereinabove, (a) Accused Mohd. Present case even otherwise by any standard on the strength of the evidence as produced and manner in which offence has been committed does not fall within the ambit of rarest of rare case. The judgment and order of sentence impugned are not in consonance with law. 34. For the reasons detailed hereinabove, (a) Accused Mohd. Shabir is convicted and sentenced for having committed offence punishable under Section 304 -II RPC for which he shall undergo imprisonment of ten years and fine of Rs. 15,000/-. For offence punishable under Section 460 RPC, he shall suffer imprisonment of ten years, and imprisonment of seven years and fine of Rs.20,000/- for offence punishable under Section 5/27(1)Arms Act. All the sentences shall run concurrently. Period of detention undergone shall be set off. In default of fine, he shall further undergo imprisonment of six months. In case fine is deposited, same shall be paid to the victims, i.e., family of the deceased. (b) Conviction and sentence against accused Raj Din and Nazir Ahmed is set aside as such they are acquitted. Appellant-Nazir Ahmed shall stand discharged of his surety and bail bonds whereas appellant-Raj Din shall be set free forthwith if not otherwise required in connection with any other case. (c) Appellant-Shabir Ahmed shall be dealt with as above at (a). (d) All the three appeals shall stand disposed of as above. (e) Confirmation of sentence as sought vide Confirmation No.8J/2011 loses its significance as having become irrelevant so shall stand disposed of accordingly. Copy of judgment along with trial Court's record be sent to the trial Court.