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2015 DIGILAW 477 (JK)

Ab. Rashid Wani v. State of J&K

2015-09-04

ALI MOHAMMAD MAGREY, MOHAMMAD YAQOOB MIR

body2015
JUDGMENT : Mohammad Yaqoob Mir, J. 1. This appeal is directed against the judgment passed by the trial court (learned Sessions Judge, Shopian) dated 08.10.2013 whereby all the appellants have been convicted for having committed offence punishable under Section 302 read with Section 34 RPC and is also against the order dated 14.10.2013 where-under accused persons have been sentenced to rigorous imprisonment for life and fine of Rs. 50,000/- each; in default of payment of fine to undergo rigorous imprisonment of further one year. In case fine is deposited same be paid as compensation to the widow of the deceased, if alive, otherwise to the legal heirs of the deceased. After recording conviction and awarding sentence, the learned trial court has submitted the proceedings for confirmation of the sentence of life imprisonment as awarded. Same is registered as Criminal Reference No.08/2013. According to learned counsel appearing for the appellants, the trial court has recorded the lengthy judgment but in the process has missed to notice the major contradictions. On unfounded-basis has convicted the appellants when they were totally innocent. According to learned Dy. AG, well reasoned judgment, on proper appreciation of the evidence, has been recorded by the learned trial court. In a well planned manner murder has been committed, therefore, the judgment under challenge does not warrant any interference. 2. In support of the rival submissions both, learned counsel for the appellants as well as learned Dy. AG took us through the evidence and also the position of the law. 3. The prosecution case as unfolded is that on 01.06.2007 Mohammad Yasin Wani (deceased) had gone to the local mosque for offering late evening prayers (hereinafter referred as 'Nimazi Isha') [Note:- "during summers particularly in the month of June same is offered normally after 9 PM]. When he did not return back till late his son namely Arshad Ahmad Wani (PW-2) lodged a report with the police station Shopian that his father on 01.06.2007 for offering the 'Nimazi Isha' went to the local mosque located in the Mohalla and when his father did not return back till late he along-with the neighbours left for his search, while reaching the mosque he found his father drenched in blood; some unknown persons with criminal intent had smashed his head with some sharp edged weapon as a result whereof he died. The dead-body of the deceased is lying inside the mosque, therefore, action may be taken. On the basis of this report at about 10 P.M. on 01.06.2007 case has been registered as FIR No. 92/2007 and the investigation was entrusted to Shri Assadullah, Sub-Inspector (PW-25). While reaching to the place of occurrence police took the custody of the dead-body of the deceased, same was photographed; injury memo, site plan were prepared; blood stains were collected from the spot on the cotton and white cloth pieces, same were seized and seizure memo was prepared. A piece of thermocool having blood stains was also seized on spot; iron bolt used as seal for seizure of these articles was also seized. In addition one lantern(candle) which was lying near the dead-body on spot was seized. One Danda (stick) made of 'kikar' wood which was outside the door of the mosque was seized as weapon of offence. Dead-body was taken to Sub District Hospital, Shopian for postmortem which was conducted by Dr. Nazir Ahmad (PW-22). During the postmortem blood sample was taken from the dead-body and the blood grouping was conducted by Laboratory Technician Mr. Javid Iqbal Malik posted in SDH Shopian. Wearing apparels of the deceased were also seized which include his trouser, shirt, sweater, Phiran (cloak) which contained blood stains. The seized articles were sent to FSL for examination. Statement of the witnesses was recorded under Sections 161 and 164 Cr. PC. 4. According to Investigating Officer during the investigation it surfaced that the engagement of daughter of the deceased with Mukhtar Ahmad Wani son of Accused No. 1 (Abdul Rashid Wani) was performed, other requirements for the marriage were completed but few months later deceased noticed the bad character of Accused No. 1, was against the marriage so the dispute arose. Some portion of the land of the deceased was taken over in connection with construction of Mughal Road for which compensation of Rs. 2.50 lacs was awarded. Out of which some amount was received by the deceased. Since Accused No. 1 had become acrimonious due to denial of marriage of his son also because the part amount of compensation was received by the deceased, so Accused No.1 hatched conspiracy with Accused No. 2 (Mohammad Rafiq Takkar); offered him some money and some work; then all the three Accused Nos. Since Accused No. 1 had become acrimonious due to denial of marriage of his son also because the part amount of compensation was received by the deceased, so Accused No.1 hatched conspiracy with Accused No. 2 (Mohammad Rafiq Takkar); offered him some money and some work; then all the three Accused Nos. 1 to 3 in consultation with each other with common intention in furtherance of the proper plan reached the local mosque at about 'Nimazi Isha'; Accused No.1 was carrying an axe and Accused No.3 was carrying a Danda (stick); while reaching the mosque located in Wani Mohalla, Heerpora entered into it. Accused No.1 caught the deceased by his collar; Accused No.2 repeatedly smashed the head of the deceased with the axe, whereas Accused No.3 attacked the deceased with Danda (stick). Deceased suffering deep wounds on his head fell down and died on spot, whereas accused persons took to their heels. Deceased was lying in the pool of blood. Accused Nos. 1 and 2 were arrested, whereas Accused No. 3 absconded. 5. Finally investigation culminated in presenting the charge sheet (challan) on 13.08.2007 against all the three accused before the court of learned Chief Judicial Magistrate, Shopian, who committed the case to the court of Sessions Judge, Pulwama. Subsequent thereto upon the creation of Sessions Division Shopian the case had been transmitted to the court of Sessions Judge, Shopian as is clearly reflected in the order dated 03.07.2008 recorded by the learned Sessions Judge, Pulwama. Finally on conclusion of trial the case has been decided by the court of learned Sessions Judge, Shopian vide judgment impugned. 6. The trial commenced with the framing of the charge on 04.03.2008 as against Accused Nos. 1 & 2. Accused No. 3 was absconding but finally he had surrendered; as against him charge has been framed on 14.07.2008. Against all the accused charge was framed to the following effect :- That on 01.06.2007 at Heerpora accused in consultation with each other entered into the mosque put the switch of electricity on off mode. Accused Mohammad Rafiq Takkar closed the mouth of the deceased; accused Sajjad Ahmad Wani while holding the legs of the deceased pulled him, whereas Accused No. 1 Ab. Accused Mohammad Rafiq Takkar closed the mouth of the deceased; accused Sajjad Ahmad Wani while holding the legs of the deceased pulled him, whereas Accused No. 1 Ab. Rashid Wani with intention to kill did hit the neck of the deceased with axe, later on accused Mohammad Rafiq Takkar and the other two accused also struck the deceased with axe and also gave hits on the forehead of the deceased, who died on spot, as such, they have committed the offence punishable under Section 302 read with Section 34 of RPC; all the accused pleaded not guilty, as such, claimed to be tried. 7. The prosecution evidence was closed on 11.10.2011. The accused were examined in terms of Section 342 Cr.P.C. on 08.12.2011. The accused have denied complicity in the crime; claimed to be innocent did not chose to produce witnesses in defence. Here it is to be noted that learned trial court has faulted in following the procedure prescribed which may not have any bearing on the result of this case but position of the procedure has to be clarified. The trial before the court of Sessions is governed by Chapter-XXIII of the Code of Criminal Procedure which begins with Section 266. After closure of the prosecution evidence and then after examination of all the accused in terms of Section 342 Cr.P.C. what is required to be done is that in terms of Section 273 both prosecution and the defense is to be heard; after hearing, if trial court considers that there is no evidence that the accused have committed offence then the trial court has to record the order of acquittal. In case the trial court finds that there is evidence that the accused have committed the offence then in terms of Section 274 the trial court is required to call upon the accused to enter on their defense and adduce evidence in support thereto. Then accused have also a right to put in the written statement and have also the right to apply for producing any document or any other thing. 8. What the learned trial court has done is that on 08.12.2011 after examining the accused in terms of Section 342 Cr.P.C. has recorded that the accused stated that they will not produce any evidence in their defense, therefore, defence evidence is closed and the case was posted for final arguments. 8. What the learned trial court has done is that on 08.12.2011 after examining the accused in terms of Section 342 Cr.P.C. has recorded that the accused stated that they will not produce any evidence in their defense, therefore, defence evidence is closed and the case was posted for final arguments. The course adopted by the learned trial court is not correct as not being in consonance with the procedure prescribed. Such omission on the part of the learned trial court in the instant case may have no bearing on the final result of the case. 9. Out of the 25 listed witnesses, 23 witnesses have been examined. PW Nos. 2 to 11 are sited as witnesses to the occurrence. Whether these witnesses supported the occurrence is first to be examined. 10. The contention of the counsel for the appellants that the evidence has not been correctly noticed in the trial court judgment persuaded us to notice the prosecution evidence briefly so as to appreciate the contentions properly. Prosecution Evidence 11. PW-1 (Mohammad Yousuf SG Constable 414), has stated that one of the accused Sajjad Ahmad Wani had absconded, his whereabouts could not be traced, therefore, he was proceeded under Section 512 Cr.P.C. No question has been put to him in cross-examination. 12. PW-2 (Arshad Ahmad Wani, son of the deceased), has stated that the accused persons present in the court are known to him. His father had gone for offering 'Nimazi Isha' in the mosque. When he started giving 'Azaan' for 'Nimazi Isha' in the mosque, in the meantime there was noise in the mosque, on hearing this he and his uncle Ab. Hamid Wani went towards the mosque with a lantern where deceased was lying in the mosque in the pool of blood. There were injuries on the back of the head of the deceased, on the forehead and on the nose. Thereafter lot of people assembled there. Sheeraz Ahmad Wani telephonically informed the police station Shopian who reached on the spot, collected samples of blood and carried the dead-body of the deceased; in addition seized pieces of thermocool. Police of its own drafted the application which was not written at his instance as he was totally disturbed and was not able to speak but the application bears his signatures. Police of its own drafted the application which was not written at his instance as he was totally disturbed and was not able to speak but the application bears his signatures. While reading the contents of the application witness stated that the words 'unknown persons' is recorded by the police when he has not said so, infact accused killed the deceased. At the time of drafting initial report he had divulged the names of the accused but police did not record it. The part to the extent that the deceased was killed by unknown persons is not correct. Infact cause of the murder is that the engagement of his sister with the son of the accused was settled. Same became the cause for acrimonious atmosphere. His father has received some amount as compensation of the land which had come under the construction of Mughal Road that also became the cause for the dispute. Police on spot seized the cap of the deceased, lantern, thermocool and the pieces of cotton. Seizure memo prepared bears his signature, same is exhibited as EX. PW-2. He can identify the seized articles, as such, identified the same. Seizure memo EX. PW-2 is regarding the cap, the cap shown is the same as was seized. Lantern was also seized. He has also identified his signature on the seizure memo exhibited as EX. PW-2/1 pertaining to the piece of thermocool, which is shown to him and identifies the same. One Danda (stick) which was seized outside the mosque is shown to him. Seizure memo bears his signature same is exhibited as EX. PW-2/2. Wearing apparels of the deceased are the same as shown to him. The contents of the seizure memo are correct same is exhibited as EX. PW-2/3. The samples of blood stains on cotton and on white clothes are same as are shown to him. Seizure memo bears his signature, same is exhibited as EX. PW-2/4. Dead-body as against the receipt was handed over to him, contents of the receipt are correct so exhibited as EX. PW-2/5. Custody memo of the dead-body is correct, same is exhibited as EX. PW-2/6. His statement was recorded under Section 164 Cr.P.C., however, his statement was not recorded by the police. But he and some other witnesses for satisfying the police had made certain statements, where the police have kept those statements is not known. PW-2/5. Custody memo of the dead-body is correct, same is exhibited as EX. PW-2/6. His statement was recorded under Section 164 Cr.P.C., however, his statement was not recorded by the police. But he and some other witnesses for satisfying the police had made certain statements, where the police have kept those statements is not known. Accused No. 1 and the father of the witness had the account of Rs. 40,000/- as his father had given the same to the Accused No. 1, who was asking for the land adjacent to the road from his father based on which his father refused the marriage of his daughter with the son of Accused No. 1. Same became the cause for the occurrence. Police had also photographed the place of occurrence. Photographs available on the file are same as were clicked on spot. On the cross-examination of the counsel for the accused, stated that Sheeraz Ahmad Wani is his cousin. Abdul Hamid Wani is his uncle. His father was 'mousin' of the mosque. At about 9 P.M. his father (deceased) left for offering 'Nimazi Isha'. It is incorrect that his mother went to Abdul Hamid Wani(brother of the deceased) and informed him that the deceased did not return back from the mosque. He too did not tell his uncle Abdul Hamid Wani that his father did not return back from the mosque. It is correct that when he left in search of his father at that time his uncle was with him, however, his uncle did not accompany him in search of the deceased instead went for offering prayers. Statement recorded under Section 164-A Cr.P.C. is incorrect to the extent that he in the company of his uncle left for the search of his father. On the date of occurrence in the area of Heerpora electricity was off that is why his father had carried lit lantern with him. There was no arrangement of electricity in the mosque, then said there was the electricity fitting. On the date of occurrence electricity was off. For using loudspeaker in the mosque there was the arrangement of battery. At about half past 9 P.M. in the night police was informed. EX. PW 2/7 was signed by him on the next day in the police station. Same is written by the police. He signed in English but cannot read much in Urdu. For using loudspeaker in the mosque there was the arrangement of battery. At about half past 9 P.M. in the night police was informed. EX. PW 2/7 was signed by him on the next day in the police station. Same is written by the police. He signed in English but cannot read much in Urdu. FIR register was also signed by him. Further stated that the police came on the spot on telephonic call of Sheeraz Ahmad Wani. In connection with construction of Mughal Road, nine(9) marlas of land which belonged to his father were taken, compensation was settled @ Rs. 2.00 lacs per kanal, his father had collected that money from the Tehsil. (emphasis added) 13. PW-3 (Sheeraz Ahmad Wani), stated that the accused are known to him. Deceased was his uncle. Deceased died on 01.06.2007. Three accused persons as shown in the challan entered into the mosque located in Wani Mohalla, Heerpora. Deceased was reciting 'Azaan' for 'Nimazi Isha' in the mosque. Witness heard half of the 'Azaan' when the mike went off. At that time he was sitting on the shop of Mohammad Shafi Wani along-with Rayees Ahmad waiting for 'Nimazi Isha', the distance between the shop and the mosque is only 10 meters. After half of the Azaan was recited all the three accused came out of the mosque; from the right side of the mosque accused Rafiq Bakerwal ran away and on the left side of the mosque Rashid Wani and Sajjad Wani ran away. We(Sheeraz Ahmad and Rayees Ahmad) were on the way to mosque thinking as to why recitation of Azaan was stopped in the midway. There they found Ab. Hamid on the spring which is adjacent to the mosque who told them to keep quiet as the accused have committed murder of Mohammad Yasin Wani. He(witness), Rayees Ahmad and Abdul Hamid went inside the mosque and saw the deceased lying in the pool of blood. Head of the deceased was injured, brain material had come out; deceased was battling for life. They cried and lot of people assembled there. First army people reached there, thereafter he (Sheeraz Ahmad) informed the police telephonically about the murder in the mosque. 'Nikah' ceremony in between the daughter of the deceased and the son of Accused No. 1 was settled but there was some acrimony in the relation. They cried and lot of people assembled there. First army people reached there, thereafter he (Sheeraz Ahmad) informed the police telephonically about the murder in the mosque. 'Nikah' ceremony in between the daughter of the deceased and the son of Accused No. 1 was settled but there was some acrimony in the relation. Deceased had some land near the road which was acquired for Mughal Road construction. Accused No. 1 wanted to construct a shop there which was agreed to by the deceased. Accused No. 1 and deceased had a very good relation that is why the office of the Agriculture Department was kept in the house of Accused No. 1 as the said accused was a very influential person. In view of the land dispute relationship got strained and the accused became inimical to the deceased. Accused No. 2 Rafiq Bakerwal was looking after the land of Accused No. 1 for last five years. Accused No. 1 had given two kanals of land to accused Rafiq Bakerwal, infact he (Rafiq Takkar) is a big dacoit. They (witness, Rayees Ahmad and Ab. Hamid Wani) cried that they sighted the accused running after committing the murder. Police had come on the spot and seized the blood stained thermo-cool, cotton, cap of the deceased and a lantern, papers were prepared then took the dead-body. On the date of occurrence outside the mosque there was a Danda (stick) which was seized by the police. At that time the paper was prepared which was signed by him. Wearing apparels of the deceased were seized. After two days of occurrence, Rafiq Bakerwal was arrested from Malikgund. On 3rd day of the occurrence on the identification of Rafiq Takkar police recovered the axe(weapon of the offence) at the distance of 10-15 meters from the mosque near the tree. He was at that time with the police. He has signed the recovery memo. On the 3rd day of occurrence Accused No. 1 was arrested but was released, then they(witnesses) got the accused arrested from the office of Agriculture Department. After the occurrence, relation of the son of the Accused No. 1 with the daughter of the deceased was broken. He got the statement recorded in the court and also before the police and has signed so many papers, admitted his signatures and the contents of the seizure memo exhibited as EX. After the occurrence, relation of the son of the Accused No. 1 with the daughter of the deceased was broken. He got the statement recorded in the court and also before the police and has signed so many papers, admitted his signatures and the contents of the seizure memo exhibited as EX. PW 2/6, receipt of the dead-body marked as EX. PW-2/5, seizure memo pertaining to seized cap and lantern exhibited as EX. PW-2/4 and also admitted the signatures and the contents of EX. PW-2/1, 2/2, 2/3 & 3. All the seized articles as made mention of in the said seizure memos were shown to him which he identified. After a gap of nine months of occurrence Accused No. 3 (Sajjad Ahmad) was arrested. On the 2nd day of occurrence his statement was recorded by the police, that statement is not shown to him in the court. Five minutes prior to the reciting of Azaan for 'Nimazi Isha' he along-with Rayees Ahmad was sitting on the shop of Mohammad Shafi Wani, was yet to perform ablution. Arshad Ahmad Wani son of the deceased went to the police station whereas he informed the police telephonically at about ten minutes to 9 o'clock; does not know by what time Arshad reached the police station. Police came on spot at 9.30 P.M. Within half an hour prepared the papers on the spot. He also signed the papers, identifies his signatures on EX. PW-2 as well as on recovery memo exhibited as EX. PW-3. Accused No. 1 Abdul Rashid Wani was handed over to the police after three days of occurrence but police released him. Then after seven days he was again arrested from the office of Agriculture Department. On 2nd day accused Rafiq Takkar was arrested. On 5th day of the occurrence accused Rafiq Bakerwal identified the axe. On the date of recovery he signed the recovery memo on spot; does not remember as to whether he has made mention of while recording statement under Section 164-A Cr.P.C. It is true that he has stated that after 3rd day of occurrence axe was seized but cannot exactly say that the axe was seized after 23 days of occurrence. He does not have eye account of the occurrence as to how deceased was killed in the mosque, however, who killed the deceased in the mosque does not know. He does not have eye account of the occurrence as to how deceased was killed in the mosque, however, who killed the deceased in the mosque does not know. However, all the three accused were in the mosque. He being the driver does not know as to whether accused Rafiq Takkar was offering prayers in the mosque. On the date of occurrence electricity was on. Yasin Wani was not carrying any lantern but the lantern in the mosque was of the mosque which was not lit as the electricity was on. The lantern which was seized by the police was of the mosque. It is correct that the son of the deceased submitted the application in the police station on the next day of occurrence. 14. PW-4 (Abdul Aziz Wani), stated that on 01.06.2007 he was on the way to mosque for offering 'Nimazi Isha'. He saw the Accused Nos. 1 & 2 running away from the right side of the mosque and Accused No. 3 running from the left side of the mosque. Witness, brother of the deceased and the family members of the deceased were present on the spot. While reaching on the spot he was told that Mohammad Yasin Wani has been killed in the mosque. When he saw the dead-body he found the head of the deceased injured and brain material had come out. He admitted the contents of the seizure memo and identified his signatures on EX. PW-2/6, 2, 2/4, 2/1 and 2/2. Accused No. 1 has asked for some money out of the compensation amount received by the deceased which became the cause for dispute as a result whereof deceased was killed. When he reached the mosque there were some 10/25 persons. He did not hear the Azaan. He saw with his own eyes the accused persons coming out of the mosque. They were not carrying any weapon or Danda. The Danda as was seized and is shown was inside the mosque then said it was outside the door of the mosque. There was one pair of shoes but it was not clear as to whom they belonged. On the spot Rayees Ahmad and Ab. Hamid were present along-with Sheeraz Ahmad. When he reached the spot he found Ab. Hamid inside the mosque then said he reached there and Ab. Hamid was coming out of the mosque. Deceased was his cousin. 15. There was one pair of shoes but it was not clear as to whom they belonged. On the spot Rayees Ahmad and Ab. Hamid were present along-with Sheeraz Ahmad. When he reached the spot he found Ab. Hamid inside the mosque then said he reached there and Ab. Hamid was coming out of the mosque. Deceased was his cousin. 15. PW-5 (Rayees Ahmad Wani), has stated that on 01.06.2007 at about 9 P.M. he was sitting on his shop which is located near the mosque. Sheeraz Ahmad was also sitting on his shop. Deceased Yasin Wani was reciting Azaan as he identified his voice. Half of the Azaan was recited, thereafter few seconds three persons carne out of the mosque i.e. Rafiq Ahmad Khatana, Abdul Rashid Wani and Sajjad Ahmad Wani (all accused). Out of them one person(Ab. Rashid Wani) came out of the door of the mosque with Danda, whereas accused Rafiq and Sajjad ran away from the right side of the mosque. He called them why they are running away but they did not respond instead ran away very fast. In the meantime from one side of the mosque where the spring is located Ab. Hamid Wani shouted that the accused have committed murder, save yourself. Further stated that Mohammad Yasin had been murdered in the mosque. Thereafter he (witness), Ab. Hamid and Sheeraz Ahmad entered into the mosque where they found the deceased rubbing his hands. On the right side of the forehead deceased had one injury whereas on the back of the head he had two injuries. Injury on the forehead was very deep. Deceased due to loss of blood died on spot, as he was in pool of blood. They cried till the relations and other persons came on the spot. Thereafter Sheeraz Ahmad made a telephone call from his Mobile and informed the police, who came on the spot. Police asked them about the occurrence and they told the police that the occurrence has been committed by the accused present in the court. Police prepared the papers on spot. Some papers were blank. He also signed the papers. Seizure memo exhibited as EX. PW-4 bears his signatures. He has also admitted his signatures on EX. PW-2, 2/4, 2/1 and 2/2. Accused Ab. Rashid was the employee of Agriculture Department. The said office was located in the house of the deceased. Police prepared the papers on spot. Some papers were blank. He also signed the papers. Seizure memo exhibited as EX. PW-4 bears his signatures. He has also admitted his signatures on EX. PW-2, 2/4, 2/1 and 2/2. Accused Ab. Rashid was the employee of Agriculture Department. The said office was located in the house of the deceased. It is during the same period the engagement of daughter of the deceased with the son of Accused No. 1 was settled. Later on deceased noticing the bad character of Accused No. 1 denied giving his daughter in marriage to the son of Accused No. 1. It is during the same period house of the deceased was required to be demolished in connection with construction of Mughal Road. Out of the compensation amount, Rs. 50,000/- was taken by Abdul Rashid Wani (accused). Same became the cause for acrimonious relationship between Accused No. 1 and the deceased and on the said acrimony deceased was killed. Shoes of the accused Ab. Rashid Wani which had fallen from his feet were seized by the police. Weapon of the offence (axe) was recovered on 2nd day of occurrence. On the cross-examination of the counsel for the accused, witness stated that his statement was recorded before the CJM, Shopian under Section 164-A Cr.P.C. Danda (stick) is the same as is shown to him in the court. It is correct that on the 2nd day of occurrence on the identification of accused Rafiq Bakerwal, police seized the axe, however, at that time he was not present on spot, but heard about the same. At the time of seizure of +Danda, pair of shoes and lantern he was present on spot. He did not see the accused attacking the deceased. He was at the distance of 7 meters and was standing around the mosque along-with Sheeraz Ahmad. It is incorrect that he was sitting on the other side of the general road. He was sitting on the shop as he had to offer the 'Nimazi Isha'. On the date of occurrence electricity was on. Night of occurrence was not moonlit. Had there been no electricity it would have been dark and in the darkness one could not identify a person from the distance of four feet. Lantern was lit in the mosque. Spring is located on the left side of the mosque. He did not see Ab. Night of occurrence was not moonlit. Had there been no electricity it would have been dark and in the darkness one could not identify a person from the distance of four feet. Lantern was lit in the mosque. Spring is located on the left side of the mosque. He did not see Ab. Hamid doing ablution, however, heard his cries. It is incorrect that on hearing the noise from the mosque Arshad Ahmad and Ab. Hamid came on spot. It is also incorrect that the deceased had brought lantern with him from his home. Lantern was of the mosque. About Rs. 50,000/- compensation, he had heard about the same. When he and Sheeraz reached on spot, Abdul Hamid was coming from the side of the mosque. He was at the distance of 5 feet from the mosque. Accused Ab. Rashid escaped from the left side of the mosque along-with Sajjad Ahmad. Accused Rafiq Ahmad escaped from the right side of the mosque. At the door of the mosque one pair of shoes and Danda was found. After the occurrence, when he entered the mosque he found the deceased rubbing his hands, at that time he was accompanied by Sheeraz Ahmad, Ab. Rashid, Abdul Hamid and Abdul Aziz, all of them saw the condition of the deceased and his position of being in the pool of blood. Electricity was on in the mosque. Lantern was also lit. Brain material of the deceased was scattered on the floor of the mosque that is why they did not dare to touch the body of the deceased. 16. PW-6 (Ab. Hamid Wani), has stated that on the date of occurrence he was suffering from toothache. He went for offering 'Nimazi Isha' to the mosque. Deceased was reciting Azaan. He was performing ablution outside the mosque. In the meantime three persons(accused) wearing shoes entered into the mosque. He, after ablution stood up and saw through the window of the mosque that the accused Ab. Rashid switched off the loudspeaker, lantern was lit in the mosque as the electric light often got on and off. Accused Rafiq Bakerwal caught hold of the feet of the deceased and accused Sajjad tied his legs and accused Rashid Wani did hit the neck of the deceased with the axe. Deceased cried then said made noise, in the meantime Ab. Aziz Wani, Sheeraz Ahmad Wani, Ab. Accused Rafiq Bakerwal caught hold of the feet of the deceased and accused Sajjad tied his legs and accused Rashid Wani did hit the neck of the deceased with the axe. Deceased cried then said made noise, in the meantime Ab. Aziz Wani, Sheeraz Ahmad Wani, Ab. Rashid Wani and wife of the deceased, Rayees Ahmad Wani S/o. Ab. Aziz Wani, son of the deceased and some neighbours reached on the spot. Sheeraz Ahmad informed the police telephonically, thereafter police came on spot. Infact the dispute between the accused(Ab. Rashid Wani) and the deceased was in view of the conflict in relationship. Ab. Rashid Wani and his family members were indulged in cutting the forest trees and other wrongs things, based on which there was the conflict. Deceased had a piece of land at the road side which was to be taken over for the construction of Mughal Road for which he had received the compensation of Rs. 3.00 lacs. Accused Ab. Rashid Wani and others were in greed so were trying to grab the said money. Police on spot seized the clothes and blood stained articles. The Danda of kikar wood was also seized. Accused Rafiq Bakerwal ran away from the spot towards Khowdara whereas other two accused ran away from the other side. The witness and others handed over Rashid Wani to the police but he was released. There were certain processions as a result whereof accused Ab. Rashid Wani was again arrested. He has identified the signatures and admitted the contents of the seizure memos such as, EX. PW-2, 4, 1, 2/5, 2/6 and 2/3. On the cross-examination of the defense counsel, stated that he is real brother of the deceased. Basic report was written by the Munshi of the Thana(police station). When he heard the Azaan he went towards the mosque. When the accused entered the mosque occurrence took place. Accused did not put off their shoes. He cried, based on which other persons such as Rayees Ahmad, Sheeraz Ahmad, Ab. Aziz and neighbours came on spot. It has been incorrectly stated that witness Arshad Wani had stated that on the date of occurrence when his father did not return back he went to his uncle Ab. Hamid and thereafter both of them went in search of his father towards the mosque. It is also incorrect that the deceased had his own lantern with him. It has been incorrectly stated that witness Arshad Wani had stated that on the date of occurrence when his father did not return back he went to his uncle Ab. Hamid and thereafter both of them went in search of his father towards the mosque. It is also incorrect that the deceased had his own lantern with him. Lantern seized by the police is of the mosque. He was doing ablution on the spring. His statement recorded under Section 164 Cr.P.C. to the extent that he was washing his face on the tap, is incorrect. Within three minutes accused entered the mosque and within same time committed the act of murder. He had cried and asked the accused not to enter the mosque wearing shoes. When he cried that the accused have committed murder only then other witnesses came. He was witnessing the whole incident through the window of the mosque. In case he would have entered the mosque he too would have been killed. He did not shut the door of the mosque as he was frightened. He is the eye witness to the case. Other witnesses also came on spot. Accused Ab. Rashid Wani was taken by the police on the 2nd day of the occurrence but released on the 3rd day. Rafiq was arrested on the 4th day of occurrence but was not released. On 6th day Rafiq produced the axe before the police. He is not witness to the axe. He heard that at the instance of accused (Rafiq) axe was recovered from the pit. On the date of occurrence it was not moonlit but electricity was on. He has no knowledge about any accounts in between the deceased and Accused No. 1 nor he has any knowledge about Rs. 40,000/- compensation amount. Cause of occurrence to his knowledge is breaking of the relationship as was scheduled between the son of Accused No. 1 and the daughter of the deceased because the deceased had come to know about the fact that Accused No. 1 does not possess good character. 17. PW-10 (Mst. Mehmooda, wife of the deceased), has stated that she knows the accused. When she reached on spot she heard that the accused had killed her husband in the mosque. 17. PW-10 (Mst. Mehmooda, wife of the deceased), has stated that she knows the accused. When she reached on spot she heard that the accused had killed her husband in the mosque. In her statement recorded under Section 164-A Cr.P.C. before the court she has stated that when her husband did not return back then she went to Ab. Hamid (brother of the deceased) and asked him to provide lantern so that they can verify where the deceased has gone. She has no knowledge about the amount which her husband had got as compensation. Long time prior to the day of occurrence Accused No. 1 had asked for money and for plot of land which her husband had refused. 18. PW-18 (Mohammad Azfal Wani), has stated that he knows the accused persons. On 01.06.2007 he was asleep in his home. Rafiq was beaten by the police, then Rafiq identified the weapon of offence; on his identification same was recovered. The paper was prepared; he has affixed his thumb impression on it. The contents of the recovery memo are correct; same is exhibited as EX. PW-3. The axe as is shown to him is the same which the police had seized. On the cross-examination by counsel for the defense has stated that about the occurrence he has no knowledge. When the deceased was killed nobody knew as to who had committed the murder, then there were demonstrations in the village and processions were taken so that it could be known as to who had committed the murder. Five days after the date of occurrence, Rafiq was arrested. Twenty three days after the death of the deceased axe was seized. Till then police had no knowledge as to who had committed the murder, that is why it was reported to the police that some unknown persons have committed the murder. At the time of the recovery of the axe, Sheeraz Ahmad was not present on spot. Axe was blood stained, except that there was no other mark. Rafiq was beaten only then he showed the weapon of the offence. When Rafiq was beaten then of his own he went to the bushes and recovered the axe. 19. At the time of the recovery of the axe, Sheeraz Ahmad was not present on spot. Axe was blood stained, except that there was no other mark. Rafiq was beaten only then he showed the weapon of the offence. When Rafiq was beaten then of his own he went to the bushes and recovered the axe. 19. PW-7 (Fayaz Ahmad Wani), has stated that on 30.06.2007 after 'Nimazi Isha' he heard some noise, came out and was told by Hamid Wani and Sheeraz Wani that the deceased has been killed in the mosque. He has identified his signatures on the seizure memos and other memos. In his statement recorded under Section 164-A Cr.P.C. it is incorrectly recorded that he had gone to the house of the deceased. It is correct that the case was registered against the unknown persons. Thereafter there were processions so that assailants could be identified. 20. PW-8 (Sabir Wani), has stated that on the next day of occurrence he heard that Mohammad Yasin Wani had been killed by some unknown persons. Who killed Mohammad Yasin, he does not know. 21. PW-19 (Mohammad Wani), has stated that on the date of occurrence when Azaan was recited it was raining, therefore, he offered 'Nimazi Isha' at his home. He heard the noise and heard from Ab. Hamid that the deceased has been killed in the mosque. Rafiq was arrested and at his instance axe was recovered. On the handle of the axe there were stains of blood. He has signed the recovery memo exhibited as EX. PW-3. Since the people of the village Heerpora were anxious to know as to who killed the deceased so there were demonstrations, people went to the Deputy Commissioner, even the people had complained that the assailants are not being identified. After three days of occurrence accused Rafiq was arrested. Accused Rafiq was brought on spot for recovery of axe. After recovery police took steps for arrest of accused Ab. Rashid and Sajjad Ahmad. When he saw the axe it was blood stained and the stains were quite live. 22. PW-11 (Nahida Akhtar, daughter of the deceased), has stated that the amount of compensation for the land taken over for construction of Mughal Road was Rs. 2.50 lacs. Accused Ab. Rashid have taken Rs. 50,000/-, when he was asked to return the said amount he was annoyed. 22. PW-11 (Nahida Akhtar, daughter of the deceased), has stated that the amount of compensation for the land taken over for construction of Mughal Road was Rs. 2.50 lacs. Accused Ab. Rashid have taken Rs. 50,000/-, when he was asked to return the said amount he was annoyed. Further has stated that her marriage was settled with the son of Accused No. 1. 'Nikah' ceremony was held, dower was also settled. When they reached to the mosque they found Sheeraz Ahmad and Ab. Hamid present there. There were processions in the village demanding identification of the accused. 23. PW-12 (Bashir Ahmad Constable), has stated that he was accompanying the Investigating Officer, while reaching to the spot they found the dead body of deceased Mohammad Yasin Wani lying inside the mosque. Some samples were collected. Seizure memo exhibited as EX. PW-14/1 was prepared, also identified his signature on EX. PW-12. Accused Ab. Rashid and Mohammad Rafiq had made disclosure. Abdul Rashid disclosed that his son was to be married with the daughter of the deceased whereas Rafiq disclosed that he has kept the axe hidden which he can recover. The contents of the disclosure statement are correct and exhibited as EX. PW-14/1. On cross-examination of counsel for the defence, has stated that six days after the date of occurrence names of the accused for commission of crime surfaced. After 18/19 days of occurrence, accused were arrested. Rafiq Takkar made disclosure in Urdu language. At that time he was handcuffed. There is no mention of iron axe in the disclosure statement. 24. PW-20 (Javid Iqbal Malik), has stated that he was posted in SDH Shopian as Laboratory Technician; one syringe of blood was sent to him by the doctor for its grouping, which was found to be AB+. Report was prepared, which is available on the records. Same is true, so is marked as EX. PW-20. On the cross-examination has stated that the sample was sent by Dr. Nazir and the same was sent back to him. 25. PW-15 (Altaf Ahmad Shah, Patwari), has stated that he was posted as Patwari. He was directed by the Tehsildar to prepare khaka dasti(site plan) on the identification of the police, which he did. Same is available on the records and is exhibited as EX. PW-15. Nazir and the same was sent back to him. 25. PW-15 (Altaf Ahmad Shah, Patwari), has stated that he was posted as Patwari. He was directed by the Tehsildar to prepare khaka dasti(site plan) on the identification of the police, which he did. Same is available on the records and is exhibited as EX. PW-15. On the cross-examination has stated that as per the site map, cowshed of accused No. 1 is adjacent to house of Sheeraz Ahmad. 26. PW-21 (Shahul Ahmad Kanth, Assistant Scientific Officer Biology/Serology), has stated that he was posted as Assistant Scientific Officer, FSL, Srinagar in the year 2007. On 15.06.2007 he received three sealed packets from SDPO, Shopian; one packet contains torn shirt, one trouser with cord, one torn wasket, one torn out pharan and one torn sweater, all blood stained; second packet contains blood stained piece of cloth/cotton and third packet contains blood stained thermocool. All these articles were sent to him for examination, which he did. On examination of these articles it was detected that these articles contains human blood stains which is of A-B group. The contents of the certificate are correct and bears his signature and is exhibited as EX. PW-21. The seized articles shown are admitted by him. On 27.06.2007, one sealed packet was sent to him by SDPO Shopian, which contained one axe with wooden handle with blood stains, for examination. Human blood stains were detected on it which is of A-B blood group. The contents of the certificate are correct and bears his signature and is exhibited as EX. PW-21/1. The seized articles shown is admitted by him. In cross-examination by the counsel for defense, has stated that on the examination of the seized articles blood group A-B was detected. No blood sample of the deceased was sent for examination. Further stated that if the axe is exposed continuously to heavy rain then there is possibility that it can effect the examination. 27. PW-13 (Zahoor Ahmad SG Constable), has stated that the accused Rafiq made disclosure statement to the effect that he has kept the axe hidden in the bushes, which he can identify. The said statement bears his signature and is exhibited as EX. PW-13. In cross-examination, has stated that at the time of disclosure statement Head Constable Bashir Ahmad and Bilal Ahmad were also present. The said statement bears his signature and is exhibited as EX. PW-13. In cross-examination, has stated that at the time of disclosure statement Head Constable Bashir Ahmad and Bilal Ahmad were also present. Disclosure was made in the police station which was recorded by the I.O. He has signed it. In his presence accused made the disclosure statement. In his presence the axe was not recovered. It is correct that the accused made the disclosure statement in the police station. If it is written under Section 164-A that the disclosure is made on the spot, same is incorrect. If it is shown that he had accompanied I.O. to Heerpora that too is incorrect. 28. PW-14 (Bilal Ahmad, Constable), has stated that Rafiq made the disclosure about the axe which was recovered. The disclosure statement EX. PW-14 is correct. When the axe was recovered on spot he was not present. In the cross-examination of the defense counsel, has stated that he does not remember as to where from the axe was recovered. 29. PW-9 (Assad Magray), has stated that on the 2nd day of occurrence he had heard that Mohammad Yasin had been killed. There were rumors that Rafiq Gujjar killed the deceased. In the cross-examination of the defense counsel, has stated that Rashid in connection with condolence remained in the house of the deceased for three days as he was in relation. His son was to be married with the daughter of the deceased. They had very good relations. It is correct that the people had suspicion that Rashid had killed the deceased. In the village there were long processions demanding identification of the assailants. Further stated that he has no personal knowledge. 30. PW-22 (Dr. Nazir Ahmad), has stated that he was posted at District Hospital Shopian in the year 2007. On 02.06.2007 dead body of the deceased was brought to him for postmortem. There were four stab wounds on the head of the deceased, brain material was partially lost. Bones of skull on right side were fractured. The cause of death of the deceased was cardio pulmonary arrest following injury on the head by sharp and heavy weapon. Report shown to the witness is admitted by him as true and correct, same is exhibited as EX. PW-22. Postmortem report shown to him was admitted as true and correct, same bears his signatures and is exhibited as EX. PW-22/1. Report shown to the witness is admitted by him as true and correct, same is exhibited as EX. PW-22. Postmortem report shown to him was admitted as true and correct, same bears his signatures and is exhibited as EX. PW-22/1. Further stated that the axe shown to him can cause the type of injury mentioned by him on the injury memo. The injury memo bears his signatures and is exhibited as EX. PW-22/2. In the cross-examination, has stated that the dead body brought to him was identified by Arshad Ahmad Wani. The death of the deceased was apparently because of injuries on the head. The witness had conducted the detailed postmortem of the deceased. The weapon of offence was not shown to him on the day of occurrence but on 03.08.2007. When the weapon was shown to him it was not having blood stains, same was wrapped by him by adhesive plaster and the witness signed on the same. But the weapon of offence which was shown to him does not bear such plaster and also does not bear his signature. 31. PW-17(Abdul Hamid Paddar), has stated that the accused Rafiq Ahmad was with the police. He was asked by the police to come with them as the accused had kept the axe which is to be recovered on his identification. Then on the identification of the accused same had been recovered which was seized by the police. The axe had wooden handle. Recovery memo bears his signature. The axe as shown in the court, cannot say whether it is the same. In the cross-examination, has stated that he as well as the police was searching for the axe. He could not say where from the same was recovered but on the identification of the accused same was recovered beneath the bushes. 32. PW-25(Assadullah, Sub-Inspector), has stated that he knows the accused persons. On 01.06.2007, Arshad Ahmad Wani came to the police station Shopian and submitted the written report to the effect that his father Mohammad Yasin Wani while leaving for offering 'Nimazi Isha' went to the mosque and when started reciting 'Azaan' was attacked by some unknown persons with some sharp edged weapon with the intention to kill and then killed him. His dead-body was lying inside the mosque. On this report case was registered as FIR No. 92/2007 for commission of offence under Sections 302, 34 RPC. His dead-body was lying inside the mosque. On this report case was registered as FIR No. 92/2007 for commission of offence under Sections 302, 34 RPC. Investigation was entrusted to him. He conducted the investigation. He had seized one cap, a lantern and one Danda (stick). After recording the statement of the witnesses during the investigation accused Ab. Rashid Wani and Mohammad Rafiq were arrested on 23.06.2007. During the investigation accused Rafiq made the disclosure statement to the effect that the axe was kept hidden by him in the bushes which he can recover. Disclosure statement was recorded, same is written by him and bears his signatures which is exhibited as EX. PW-14. On the identification of the accused the axe was recovered which was blood stained. Seizure memo and recovery memo bears his signatures and are marked as EX. PW-3 and 25/3. Statement of material witnesses was recorded under Section 164-A Cr.P.C. After taking other necessary steps it was established that the daughter of the deceased was to be married to the son of Accused No. 1 but there was some strained relation between them as the deceased had noticed that Accused No. 1 is a bad charactered person. Then stated that the deceased had some land which had come under the construction of Mughal Road for which he had received compensation. Ab. Rashid wanted to grab some of this land. On the basis of which Accused No. 1 offered some money to the Accused No. 2, then the Accused 1 to 3 in furtherance of common intention reached the mosque at 'Nimazi Isha'; while entering into the mosque Accused No. 2 had given repeated hits with the axe on the head of the deceased, Accused No. 3 had hit the head of the deceased with Danda(stick) and Accused No. 1 had pulled the collar of the deceased, who fell down in the pool of blood and died. Accused persons ran away from the scene of occurrence. Charge sheet along-with accused was presented before the court. In cross-examination, witness has stated that initially there was no information or knowledge about the commission of offence by the accused. People held demonstrations so that culprits are arrested. From 01.06.2007 to 05.06.2007 demonstrations continued as the identity of the assailants was not known. However, there was suspicion about the accused persons. In cross-examination, witness has stated that initially there was no information or knowledge about the commission of offence by the accused. People held demonstrations so that culprits are arrested. From 01.06.2007 to 05.06.2007 demonstrations continued as the identity of the assailants was not known. However, there was suspicion about the accused persons. Complainant himself came to the police station and the case was registered. It is incorrect that any information about the occurrence was received tele-phonically. Complainant himself came to the police station and submitted the report. He was alone but was horrified. It is incorrect that the initial report was written by the police. He had recorded the statement of witnesses under Section 161 Cr.P.C. The statement of complainant (Arshad Wani) and all other witnesses recorded under Section 161 Cr.P.C. are not available on the file. Those were kept in the C/T) file as the said statements were not available in the main file, therefore, at the time of submitting the charge sheet copies of these statements were not furnished to the accused. As per the C/D file statement of Arshad Wani was recorded on 01.06.2007. On 23.06.2007, axe was seized. The axe as is shown in the open court carries a tape on one side. On the sharp edge of the axe there were blood stains. It is incorrect to say that when the axe was recovered, at that time accused Ab. Rashid and Rafiq Takkar were accompanying him, however, accused Rafiq Takkar made the disclosure and it is on his identification weapon of offence was recovered. He had sent the Danda (stick) to FSL for analysis. He had searched for fingerprints on the Danda which were not available. Rafiq was arrested on 19.06.2007. Accused Ab. Rashid and Sajjad Ahmad, till there arrest, were available in the village. Lantern which was seized as per the investigation was of the deceased, as on the date of occurrence there was no electricity in the village. On the date of occurrence it was dark till he was present on the spot. On the date of occurrence electricity was not on. According to his investigation the cause of murder was the bad character of Accused No. 1. Deceased was to get the compensation which the accused No. 1 wanted to grab. On the date of occurrence it was dark till he was present on the spot. On the date of occurrence electricity was not on. According to his investigation the cause of murder was the bad character of Accused No. 1. Deceased was to get the compensation which the accused No. 1 wanted to grab. In the statements recorded under Section 164-A Cr.P.C. it is not recorded that the cause for the murder was the character of Accused No. 1. In the C/D file nothing is recorded about the character of Accused No. 1. In his investigation it had come forth that Accused No. 1 and the wife of the deceased had illicit relations. Same was the cause for murder and then compensation for the land was also another cause. After a period of 54 days of occurrence statements under Section 164-A Cr.P.C. were recorded. Complainant had agreed to the contents of the first report, however, on the copy of the FIR signature of the complainant is not recorded. 33. PW-24 (Tariq Ahmad, Inspector), has stated that the investigation conducted by Assadullah, S.I., was examined by him and was satisfied with the conclusions. On the cross-examination of defense counsel, has stated that the case was registered against the unidentified persons. It is during the investigation it has surfaced that the accused persons are involved in the crime. Statements of the witnesses under Section 161 Cr.P.C. were recorded. Statement of Javid Iqbal recorded under Section 161 is not available on the file. Statements of other witnesses under Section 161 are also not available on the file. Statements of witnesses were recorded on 01.06.2007, 03.06.2007, 07.06.2007 and 23.06.2007, however, same are not available on the file. 34. Whether the prosecution has been able to prove its case, same depends upon the testimony of three star witnesses, PW-3 (Sheeraz Ahmad Wani), PW-5 (Rayees Ahmad Wani) and PW-6 (Abdul Hamid Wani). 35. Before appreciating the depositions of the said witnesses it has to be borne in mind that the depositions of the relative witnesses have to be examined with great care and circumspection. PW-3 (Sheeraz Ahmad) is the nephew of the deceased, whereas PW-6 (Ab. Hamid) is the brother of the deceased, PW-5 (Rayees Ahmad) is also a relative of the deceased. It is the said three witnesses, who according to them, were the first to reach the place of occurrence. PW-3 (Sheeraz Ahmad) is the nephew of the deceased, whereas PW-6 (Ab. Hamid) is the brother of the deceased, PW-5 (Rayees Ahmad) is also a relative of the deceased. It is the said three witnesses, who according to them, were the first to reach the place of occurrence. These three witnesses have given different versions and the position of their depositions has been made totally doubtful by PW-2(Arshad Ahmad Wani, son of the deceased). This is infact one set of the witnesses. 36. PW-3 (Sheeraz Ahmad Wani), nephew of the deceased has said that the deceased was reciting the Azaan for 'Nimazi Isha' when he and Rayees Ahmad were sitting on the shop which is at a small distance from the mosque. After the Azaan was halfly recited, the accused persons came out of the mosque and ran away. When they, Sheeraz Ahmad and Rayees Ahmad reached towards the mosque as to why recitation of Azaan was stopped, there they found Ab. Hamid Wani on a spring which is adjacent to the mosque. Ab. Hamid asked them to be quiet as the accused have murdered the deceased. Whereas PW-5 (Rayees Ahmad) has stated that he and Sheeraz Ahmad were sitting on the shop, while reciting of Azaan was in progress it stopped in the midway and three persons came out of the mosque, who were accused. He called them as to why they are running away, who in reply did not say anything but ran away with speed. On the one side of the mosque where spring is located, Ab. Hamid gave a voice that the accused have committed murder, save your lives. 37. Comparing the two versions of these two witnesses, what is clear is that Rayees Ahmad said that the accused came out of the mosque he gave them a call who did not respond but ran away; this is not said by Sheeraz Ahmad, when both of them were together. Sheeraz Ahmad said that when they were going towards the mosque they found Ab. Hamid on a spring who asked them to be quiet as the accused have committed murder, whereas, Rayees Ahmad has said that Ab. Hamid voiced that the accused have committed murder, save your lives.' Ab. Sheeraz Ahmad said that when they were going towards the mosque they found Ab. Hamid on a spring who asked them to be quiet as the accused have committed murder, whereas, Rayees Ahmad has said that Ab. Hamid voiced that the accused have committed murder, save your lives.' Ab. Hamid has stated that when he cried, in the meantime Abdul Aziz, Sheeraz Ahmad, Abdul Rashid, wife of the deceased, Rayees Ahmad then said son of the deceased and the neighbours came on the spot. PW-3 Sheeraz Ahmad and PW-5 Rayees Ahmad have not said that Aziz, Ab. Rashid, wife of the deceased and the son of the deceased and the neighbours reached their together. Instead Sheeraz Ahmad is categoric in stating that he, Ab. Hamid and Rayees Ahmad entered into the mosque where they found the deceased in the pool of blood, whereas PW-5 Rayees Ahmad has stated that he, Sheeraz Ahmad and Ab. Hamid entered into the mosque, deceased was rubbing his hands. Sheeraz Ahmad has not said that the deceased was rubbing his hands; he has stated that there was injury on the head of the deceased, brain material had come out, whereas Rayees Ahmad has stated that there were two injuries on the back of the head of the deceased, one on the forehead and one on the nose. Then Sheeraz Ahmad has stated that they cried, people came on spot, whereas Rayees Ahmad said that they cried only then relatives and family members of the deceased came on spot. 38. PW-2(Arshad Ahmad Wani) has stated that his father had gone for offering 'Nimazi Isha', while reciting the Azaan there was noise. He and his uncle Ab. Hamid (PW-6), carrying a lantern, went towards the mosque where they found the deceased in the pool of blood, PW-2 is the son of the deceased; he is categoric in stating that he along-with Ab. Hamid after hearing the noise from the mosque went towards it, means Ab. Hamid(PW-6) was not in the mosque or on the spring at the time noise was coming from the mosque. Whereas Ab. Hamid has stated that he was on the spring doing ablution when he saw three persons entering into the mosque alongwith shoes. 39. The position of Ab. Hamid(PW-6) was not in the mosque or on the spring at the time noise was coming from the mosque. Whereas Ab. Hamid has stated that he was on the spring doing ablution when he saw three persons entering into the mosque alongwith shoes. 39. The position of Ab. Hamid(PW-6) being present on spot is becoming more and more doubtful, as according to him he was busy in ablution on the spring near the mosque when he saw three persons wearing the shoes entering into the mosque then he stood up and watched through the window that Accused No. 1 Ab. Rashid switched off the speaker, then accused Rafiq Ahmad caught the deceased by feet and accused Sajjad Ahmad tied the legs of the deceased and then accused Ab. Rashid did gave blow of axe on the neck of the deceased; now who is to be believed, Arshad Ahmad PW-2 (son of the deceased) or Ab. Hamid PW-6 brother of the deceased? Then again doubtful position of Ab. Hamid being, present on spot, is further strengthen by the wife of the deceased PW-10 Mst. Mehmooda, who has stated that her husband had gone for offering 'Nimazi Isha' when he did not return back she went to the house of Ab. Hamid (PW-6) and asked for lantern. The position of Ab. Hamid PW-6, being present on spot is otherwise also becoming doubtful; in case he would have been present on spot and would have seen the assailants (accused) then PW-2 Arshad Ahmad, son of the deceased, while lodging the report in the police station (EXPS 2/7) would have clearly mentioned the names of the accused, instead he had categorically mentioned in the report that his father has been killed by unknown persons with some sharp edged weapon. Again in case identity of the accused would have been known then accused would have been arrested immediate, when they were available in the village more particularly Ab. Rashid, but were not arrested. It has come in the evidence more particularly of the Investigating Officer as well as other prosecution witnesses, such as, Fayaz Ahmad Wani, Mohammad Afzal Wani, Mohammad Wani that when demonstrations were held, processions were taken in the village, people were demanding that the culprits who have killed the deceased be identified. In case Sheeraz Ahmad PW-3 and Ab. It has come in the evidence more particularly of the Investigating Officer as well as other prosecution witnesses, such as, Fayaz Ahmad Wani, Mohammad Afzal Wani, Mohammad Wani that when demonstrations were held, processions were taken in the village, people were demanding that the culprits who have killed the deceased be identified. In case Sheeraz Ahmad PW-3 and Ab. Hamid PW-6 would have seen the assailants, then there was no question of holding demonstrations demanding identity of the culprits. It appears that Sheeraz Ahmad, Rayees Ahmad and Ab. Hamid have exaggerated their versions because all of them have stated that they have seen the assailants even Rayees Ahmad has stated that when he saw three accused coming out of the mosque running away he gave them a call but they ran away faster. Similarly Sheeraz Ahmad also stated that the accused persons came out of the mosque and ran away. If it was so, what was the difficulty in identifying the three assailants entering into the mosque who killed the deceased, is a question which has remained to be answered. 40. The position of Ab. Hamid PW-6(brother of the deceased), who has stated that he had watched the occurrence from the window of the mosque, appears to be cooked up story as according to him when three accused persons entered the mosque he stood up and watched from the window of the mosque that Ab. Rashid and Rafiq Ahmad caught the feet of the deceased and accused Sajjad Ahmad tied the legs of the deceased and Ab. Rashid gave blow on the neck of the deceased with the axe. In case it would have been so, then what was the difficulty for him in not divulging the same to the police; then there could have been no demonstrations or processions in the village demanding the identity of culprits. 41. PW-3 Sheeraz Ahmad after the occurrence has stated to have informed the police telephonically but 1.0 of the case (Assadullah) has deposed before the court that no telephonic call was received by the police. It is only PW-2 Arshad Ahmad Wani, who came to the police station and lodged a written report mentioning therein that his father has been killed by unidentified persons. It is only PW-2 Arshad Ahmad Wani, who came to the police station and lodged a written report mentioning therein that his father has been killed by unidentified persons. Then same 1.0 has also qualified in his statement that the identity of the assailants was not known, people held demonstrations so that the assailants could be identified; has further made it clear that from 01.06.2007 to 05.06.2007 there was no clue as to who were the assailants. 42. PW-2 Arshad Ahmad has qualified in his statement that when he went in search of his father his uncle Ab. Hamid had accompanied him. 43. During the examination of the witnesses, some circumstances have emerged which are apt to be noticed; (i) the deceased and Accused No. 1 Ab. Rashid Wani are stated to have been good friends. The engagement of daughter of the deceased was settled with the son of Accused No. 1; (ii) allegedly wife of the deceased was having illicit relations with Accused No. 1; (iii) deceased noticing the improper character of Accused No. 1 denied to solemnize the marriage of his daughter with the son of Accused No. 1; (iv) deceased is stated to have been possessing some land and the structure adjacent to the road, some portion of which was taken for construction of Mughal Road and he was paid compensation of Rs. 3.00 lacs or Rs. 2.50 lacs; then some witnesses said that the accused was paid Rs. 40,000/- by the deceased, when the same was demanded by the deceased he got annoyed. Some witnesses more particularly daughter of the deceased said Rs. 50,000/- was paid to Accused No. 1, on demand he refused to return. Some witnesses said that Accused No. 1 wanted to grab the entire compensation amount of Rs. 3.00 lacs from the deceased. Again some witnesses said that Accused No. 1 had asked the deceased to give him the piece of land adjacent to Mughal road as he wanted to construct shops which the deceased refused. 44. All the aforementioned situations are stated to be the cause for enmity between the deceased and Accused No. 1 which according to the witnesses resulted into murder of the deceased. 45. 44. All the aforementioned situations are stated to be the cause for enmity between the deceased and Accused No. 1 which according to the witnesses resulted into murder of the deceased. 45. It appears that in the aforesaid background accused on suspicion have been implicated; the inference as can be safely drawn is that no one had seen the actual assailants who killed the deceased, that is why the witnesses have given the wavering statements with all attempts to say that accused are involved. 46. The position of actual occurrence, not to have seen by anyone, has given rise to concoctions:- (a) According to PW-2 Arshad Ahmad Wani, Rs. 40,000/- as were taken by Accused No.1 from his father were demanded back, whereas according to Rayees Ahmad PW-5, Rs.50,000/- were taken by Accused No. 1 from the deceased. According to Ab. Hamid PW-6, Accused No.1 wanted to grab Rs.3.00 lacs as was the compensation amount received by the deceased. According to Nahida, daughter of the deceased, Rs. 50,000/- were taken by Accused No. 1 from the deceased. (b) According to PW-2 Arshad Ahmad, son of the deceased, electricity on the date of occurrence was not available so his father took a lit lantern with him while going to the mosque then has said in the cross examination that there was no arrangement of electricity in the mosque. According to Ab. Hamid PW-6, deceased had not brought any lantern with. According to PW-3 Sheeraz Ahmad, on the date of occurrence electricity was on, deceased did not bring any lantern with. There was lantern in the mosque which too was not lit as the electricity was on. According to PW-4 Ab. Aziz Wani, cousin of the deceased, the seized lantern did not belong to the deceased; further qualified that if there would have been no electricity accused could not have been identified. According to Fayaz Ahmad, on the date of occurrence it was very dark, electricity was on. According to I.O. on the date of occurrence there was no electricity light in the village. Now who is to be believed? (c) Another circumstance is that according to Ab. Hamid when he saw the accused Rashid giving the axe blow on the neck of the deceased he cried then Ab. Aziz, Sheeraz Ahmad, Ab. According to I.O. on the date of occurrence there was no electricity light in the village. Now who is to be believed? (c) Another circumstance is that according to Ab. Hamid when he saw the accused Rashid giving the axe blow on the neck of the deceased he cried then Ab. Aziz, Sheeraz Ahmad, Ab. Rashid, family of the deceased, Rayees Ahmad, son of the deceased and the neighbours came on the spot; whereas PW-3 Sheeraz Ahmad and PW-5 Rayees Ahmad have not said so. According to PW-3 Sheeraz Ahmad the brain material of the deceased had come out, whereas according to PW-5 Rayees Ahmad, the brain material was scattered on the floor of the mosque. Same is not stated by Ab. Aziz. As per the injury memo EX. PW-22, there were four injuries, two on the head, one on the nose and one on the forehead of the deceased, whereas according to Ab. Hamid Accused No. 1 had hit on the neck of the deceased. It again exposes the position of the witnesses having not been present on the spot. (d) According to I.O. (S.I. Assadullah), accused Ab. Rashid and Rafiq Ahmad were arrested on 23.06.2007, occurrence is of 01.06.2007; why till 23rd June 2007 they were not arrested when they were available; they had not absconded. None of the witnesses has said that Accused No.1 Ab. Rashid or Rafiq Ahmad had absconded or even Sajjad Ahmad had absconded. According to PW-5 Rayees Ahmad, accused Rafiq Ahmad was arrested by the police on 7th day of occurrence when according to 1.0 he was arrested on 23.06.2007. When Rafiq Ahmad was arrested on 23.06.2007 then statement of Ab. Hamid PW-6 to the effect that accused Rafiq Ahmad on 6th day of occurrence identified the axe which was recovered. According to PW-3 Sheeraz Ahmad they had handed over the accused Ab. Rashid to the police but he was released. PW-2 Arshad Ahmad has deposed and tried to justify the words unknown persons mentioned in the report EX. PW 2/7 by stating that he had given names of the accused but the police did not write their names then qualified that the report expect words 'his father was killed by unidentified persons' is correct. It also bears his signature. PW-2 Arshad Ahmad has deposed and tried to justify the words unknown persons mentioned in the report EX. PW 2/7 by stating that he had given names of the accused but the police did not write their names then qualified that the report expect words 'his father was killed by unidentified persons' is correct. It also bears his signature. When according to I.O. (S.I. Assadullah), Arshad Ahmad came to the police station submitted the report clearly mentioning therein that unidentified persons killed his father. This position gets further strengthen because the statements recorded under Section 161 Cr.P.C. on 30.6.2007, 17.6.2007 and 23.6.2007 have neither been placed on record nor copies have been furnished to the accused. PW Tariq Ahmad had qualified that the statements recorded on such dates were not available on the file, which means in those statements the witnesses might have said that the assailants were not known to them. Accused Rafiq Ahmad admittedly had been beaten by the police as has come in the evidence, then at his instance alleged axe was recovered which was kept hidden behind the bushes and the axe contained blood stains. In order to show that the blood stains on the axe then on the clothes, on the thermocool as were seized was that of the deceased; the blood sample of the deceased is shown to have been taken but that blood sample and its result(report) has remained in the region of suspicion. (e) Some of the witnesses have stated that Rafiq Bakerwal was arrested on the 4th day of occurrence whereas in the disclosure memo has been shown on 23.6.2007. According to 1.0 also, Rafiq was arrested on 23.6.2007. (f) Staterrient of witnesses is full of concoctions and fabrications giving rise to strange doubtful position. PW-6 who had styled himself as the witness of the occurrence appear to have given concocted story as his position of not being present on spot is exposed by PW-2 and the wife of the deceased PW-10. The depositions of PW-3 Sheeraz Ahmad and PW-5 Rayees Ahmad are also contradictory as noticed hereinabove. (g) The medical evidence, such as EX. PW 21/1 and EX. PW-20 and then evidence such as, opinion of FSL exhibited as EX. PW 21/1 and EX. The depositions of PW-3 Sheeraz Ahmad and PW-5 Rayees Ahmad are also contradictory as noticed hereinabove. (g) The medical evidence, such as EX. PW 21/1 and EX. PW-20 and then evidence such as, opinion of FSL exhibited as EX. PW 21/1 and EX. PW-20 has not been put to the accused while they were examined under Section 342 Cr.P.C. which has given rise to prejudice i.e. some witnesses have said that there were two wounds on the back of the head, one on the nose and one on the forehead of the deceased, whereas some witnesses said that there were only three wounds. The most important position is that PW-6 Ab. Hamid (brother of the deceased) has stated that accused Ab. Rashid gave the axe blow on the neck of the deceased but the position recorded during the postmortem does not show that there was any wound on the neck of the deceased. The blood grouping as per EX. PW-20 of the sample of the blood of the deceased has been recorded as AB positive, whereas according to the results of the analysis as prepared by the Assistant Scientific Officer exhibited as EX. PW-21, the blood stains as were examined were found to be of Group AB. It is not recorded whether it is AB positive or AB negative. It assumed significance in view of the fact that the blood sample of the deceased was shown to be of Group AB+, whereas the blood stains on the clothes and other blood stained articles as seized, as per the report of Assistant Scientific Officer were of Group AB; AB could be both, positive or negative, so on such count the position as recorded by the Assistant Scientific Officer has remained to be explained. In addition thereto accused too have been deprived of clarifying the position as these circumstances have not been put to the accused while examined under Section 342 Cr. P.C., therefore, such evidence when it is causing prejudice to the accused could not be read against the accused. 47. Learned trial court has not appreciated the entire evidence in its proper perspective. Noticing the same during the course of arguments, while going through the evidence as had been recorded by the trial court we are persuaded to appreciate by reading it from the trial court file that is why the important depositions of the witnesses are noticed with clarity. Learned trial court has not appreciated the entire evidence in its proper perspective. Noticing the same during the course of arguments, while going through the evidence as had been recorded by the trial court we are persuaded to appreciate by reading it from the trial court file that is why the important depositions of the witnesses are noticed with clarity. Learned trial court has ignored the contradictory depositions of the witnesses such as, Ab. Hamid, Rayees Ahmad and Sheeraz Ahmad and of PW-2 Arshad Ahmad coupled with the statement of I.O., then the position of demonstrations, processions which continued for some time in the village demanding actual identity of the assailants. 48. Law has to be applied on the fact position of the particular case; when the facts are shaky, depositions are such which are not enough to inspire confidence more particularly when the witnesses are relative witnesses, more care is required to be taken while appreciating their depositions that too in the background of the circumstances, such as, breakdown of the proposed marriage between the son of Accused No. 1 and the daughter of the deceased and the alleged illegal connections of the wife of the deceased with Accused No. 1, grabbing of money; all these factors appear to have given rise for implicating the accused in the commission of offence. Otherwise basic occurrence has not been seen by anyone. The vital situation is that according to one of the witnesses, army people reached on spot first; if they had reached on spot why none amongst them have been sighted as witness. 49. Base of the case has become doubtful vis-a-vis identity of assailants and it shall be totally unsafe to convict the accused persons; they deserve to be granted benefit of doubt. 50. The suspicious position of the case would suggest that the murder has been committed but actual criminals have remained to be exposed. On the strength of the depositions of the witnesses, position of which is shaky, it shall be totally unsafe to hold the accused persons guilty and convict them, therefore, the accused persons are entitled to benefit of doubt. The judgment of the trial court recording conviction and the order awarding the sentence, as impugned in this case, being unsustainable, as such, are set aside. The judgment of the trial court recording conviction and the order awarding the sentence, as impugned in this case, being unsustainable, as such, are set aside. Accused who have been languishing in the jail for last nearly 10 years shall be released forthwith, if not required in any other case. The reference as received in terms of Section 374 Cr.P.C. is accordingly answered. 51. Criminal Appeal along-with Criminal Reference is as such, disposed of as above. 52. Copy of this judgment along-with trial court records be sent to the trial court. Superintendent, Central Jail, Srinagar, be informed to release the accused persons, if not required in connection with any other case.