JUDGMENT : Mohammad Yaqoob Mir, J. 1. This appeal is directed against the judgment dated 26.04.2011, where under accused (appellants) have been convicted for commission of offences punishable under Sections 302/452 RPC read with Section 34 RPC, whereas for offences under Section 7/27 Arms Act stand acquitted. Vide order dated 27.04.2011, the convict have been sentenced under Section 302/34 RPC to life imprisonment and payment of fine of Rs. 25,000/- (Rupees Twenty Five Thousands) each whereas under Section 452/34 RPC have been sentenced to rigorous imprisonment for three years and fine of Rs. 1,000/- (Rupees One Thousand), in default of payment of fine shall have to undergo simple imprisonment for one year. All the sentences have been directed to run concurrently. The sentence of life imprisonment being subject to confirmation, therefore proceedings under Section 374 Cr.P.C. have been submitted for confirmation which stands registered as Confirm No. 6/2011. The prosecution case as unfolded is that from a reliable source on 02.08.2001 at about 8:30 am, information was received at Police Station Basantgarh to the effect that in the intervening night of 1/2nd August, 2001 some unknown militants killed Mst. Arshad Begum and Mst. Amina Begum, with sharp edged weapon, their throats were slitted at village Kadwa. The dead bodies were lying at different places outside their respective houses. The assailants fled after committing the crime. 2. On completion of investigation, charge-sheet (challan) has been presented before the Court of Judicial Magistrate Ramnagar on 24.10.2002 in absence of the accused persons. After recording satisfaction about their abscondence, learned Judicial Magistrate committed the case on the same day to the Court of Sessions, Udhampur. 3. In the final report submitted under Section 173 Cr.P.C. (charge-sheet), it has been mentioned that on 02.08.2001 from reliable source, information was received to the effect that on intervening night of 1/2nd August, 2001, unknown terrorists have in the village Kadwa, after dragging out Mst. Arshad Begum w/o. Nizamudin and Mst. Amina Begum W/o. of Zahoor Din R/o Kadwa, Tehsil Ramnagar from their houses cut their throats with some sharp-edged weapon, as such both were slaughtered. The dead bodies were lying at separate places on spot. 4. On receipt of the report case was registered as FIR No. 16/2001, P/S Basantgarh. Arshad Begum w/o. Nizamudin and Mst. Amina Begum W/o. of Zahoor Din R/o Kadwa, Tehsil Ramnagar from their houses cut their throats with some sharp-edged weapon, as such both were slaughtered. The dead bodies were lying at separate places on spot. 4. On receipt of the report case was registered as FIR No. 16/2001, P/S Basantgarh. Investigation was entrusted to Shri Harbans Lal, SI who after reaching the spot prepared the site map, injury memo, got the dead bodies photographed and then were taken to hospital for post-mortem examination and completed other formalities which include preparation of seizure memos, receipt of dead bodies. 5. During investigation it surfaced that terrorists had belief that Mst. Arshad Begum and Mst. Amina were working as informers to the police and security force and were informing police about the movement of the terrorists. Security forces used to come to their houses. On such basis, the armed terrorists entered into their houses by spreading terror slitted their throats with sword (Khokhri), then concluded that as against the accused (appellants) commission of offences under Section 452/124 A/302/34 RPC and 7/27 Arms Act was established. The appellants (accused) including one who is now dead are dreaded Pak trained terrorists involved in various cases of murder, rape, arson, anti-national activities. Various steps were taken for apprehending the accused which could not fructify, however their immediate arrest is not possible, therefore, proceedings in terms of Section 512 Cr.P.C. may be initiated against the accused. 6. The said charge-sheet (challan) was filed before the Court of Judicial Magistrate 1st Class, Ramnagar on 24.10.2002, on the same date after examining the two constables regarding search of the accused and their remote prospect of arrest, the Court recorded satisfaction about their abscondence and ordered proceedings in terms of Section 512 Cr.P.C. and then on the same date committed the case to the Court of Sessions Judge, Udhampur. 7. Learned Sessions Judge, Udhampur vide his order dated 12.12.2002 observed that the accused stand proceeded under Section 512 Cr.P.C., general warrant of arrest stands issued against them. The witnesses are not available, therefore, the file be kept in the record for the time being till accused surrender or are produced. 8. On 31.05.2005, accused Gul Mohd. Appellant No. 3 was produced under proper custody whereas regarding accused Mushtaq Ahmad and Mohd. The witnesses are not available, therefore, the file be kept in the record for the time being till accused surrender or are produced. 8. On 31.05.2005, accused Gul Mohd. Appellant No. 3 was produced under proper custody whereas regarding accused Mushtaq Ahmad and Mohd. Hussain, D.O. Letter was directed to be sent to SSP, Kathua for their production. 9. Learned Trial Court vide its order dated 29.06.2005 has recorded that accused No. 3 Mohd. Abbas is since died, the accused Mushtaq Ahmed and Mohammad Hussain were also produced under proper escort provided by SSP, Kathua who had requested to send the accused persons Mohd. Abbas and Mohd. Hussain back as they are surrendered militants. He, SSP will ensure presence of these accused persons on each and every date of hearing. Learned Trial Court observing that the accused are involved in the commission of serious offences and that another accused Gul Mohd. is already lodged in Judicial Custody, therefore these two accused (Appellants No. 1 and 2) are also to be treated alike, so directed them to be lodged in District Jail, Udhampur for being produced for facing the trial on each and every date of hearing. The Charge was framed to the following effect:- "That in intervening night of 1/2nd August, 2001, accused with intention to commit crime have entered into the house of Zahoor Ahmed wherefrom his wife Mst. Amina Begum was dragged out on to Verandah. The accused Gul Mohd. did put a rope around the neck of Mst. Amina thereafter accused Mushtaq Ahmad from both sides pulled the rope and pressed her throat whereas Mohd. Abbas under the light of torch wielding a Gun remained standing. Accused Mohd. Hussain slaughtered her, therefore have committed the offence punishable under Section 302/452/34 RPC and 7/27 Arms Act. 10. Separate charge sheet was framed against all the three accused accordingly. Accused pleaded not guilty. Prosecution was directed to lead evidence in support of its case. 11. Out of listed 14 witnesses, witness Nos. 1 and 2 were regarding search of the accused persons whose statements were recorded by the Learned Committal Magistrate regarding satisfaction about the abscondence of the accused. Listed witness No. 4 Mangtullah had died. Listed witness No. 14 was given up. 12. Out of remaining 10, eight witnesses namely Zahoor Ahmad, Mst. Afroza Bano, Mushtaq Ahmad, Mohd. Haneef, Mohd. 1 and 2 were regarding search of the accused persons whose statements were recorded by the Learned Committal Magistrate regarding satisfaction about the abscondence of the accused. Listed witness No. 4 Mangtullah had died. Listed witness No. 14 was given up. 12. Out of remaining 10, eight witnesses namely Zahoor Ahmad, Mst. Afroza Bano, Mushtaq Ahmad, Mohd. Haneef, Mohd. Hussain, Shri S.L. Dalia BMO, Shri Raghunandan Singh (Naib-Tehsildar), Shri Harbans Lal (10) were produced and examined. The prosecution evidence was closed on 12.07.2007. Accused were examined in terms of Section 342 Cr.P.C. after hearing both PP and the counsel for the accused, the trial court opined that it is not a case of no evidence, accused are required to enter upon defence. In defence the accused produced two witnesses namely Jameel Ahmed and Farzi Begum. Defence evidence was closed on 23.01.2009. After hearing, case was reserved for final judgment. 13. It appears that the Trial Court while examining the record has noticed that in the charge framed against the accused, there is omission about the killing of Arshad Begum. Same on 05.09.2009 was pointed out to the counsel for the parties. Then learned Trial Court vide detailed order dated 30.09.2009 observed: "That the omission to state the occurrence, altogether cannot be ignored and is certainly a material omission. The judgment as regards the killing of the deceases (Arshad Begum) without any charge may have serious consequences. Therefore the charge has to be added regarding the death of Mst. Arshad Begum to the charge already framed by this Court, and then has framed the charge on the same date i.e. 30.09.2009 separately against the accused to the following effect: "That in the intervening night of 1/2nd August, 2001 at about 9:30 pm, the accused in furtherance of common intention to commit criminal act entered into the house of Mst. Arshad Begum w/o. Nizamudin situated at village Kadwa Ramnagar brought her out from the home and slitted her throat to death. Thereafter they also committed the murder of Mst. Amina Begum regarding which mention is made in the earlier framed charge-memo, as such the accused have committed the offence punishable under Sections 302/34 and 452 RPC. Public Prosecutor sought time so as to apprise the Court whether he will examine afresh all or any of the witnesses as regards the killing of deceased Arshad Begum. Amina Begum regarding which mention is made in the earlier framed charge-memo, as such the accused have committed the offence punishable under Sections 302/34 and 452 RPC. Public Prosecutor sought time so as to apprise the Court whether he will examine afresh all or any of the witnesses as regards the killing of deceased Arshad Begum. Order recorded on 27.11.2009 suggests that PP had sought time for production of the witnesses. Numerous opportunities were granted. In the process regarding PW-9 Mohd. Hussain, counsel for the defense had stated that his statement is already recorded if same is read against the accused he shall have no objection. On 30.03.2010, PW-7 Altaf Hussain who was not earlier produced or examined, after the reframing of the charge was produced and examined. Regarding PW-Shri Raghunandan Singh, the counsel for the defense had stated that his statement is not required to be recorded. When other witnesses despite fixing of calendars for their production were not produced, the prosecution evidence was again closed vide order dated 30.10.2010. 14. The accused were again examined in terms of Section 342 Cr.P.C. on 22.11.2010. Again after hearing the PP and the defense counsel under Section 273 Cr.P.C., the accused was asked to enter upon defense but learned counsel for the accused had submitted that no further evidence is required to be produced; as such defense evidence was closed. 15. Learned counsel for the appellants first projected that when the charge was framed on 29.06.2005, the non mention about the murder of Arshad Begum has mislead the accused during trial. The trial is vitiated. The accused are entitled to acquittal. The argument is without any substance. It is a fact that negligence has been exhibited while framing charge against the accused on 29.06.2005 by non-mentioning the particulars and the position about the murder of Arshad Begum. The learned Trial Court after hearing the case has noticed the same position until then neither prosecution nor defense has pointed out the defect in the charge. 16. The omission in framing the charge vis-a-vis murder of Arshad Begum has not caused any prejudice to the defense for two reasons; (a) Firstly learned Trial Court in effect after framing the charge regarding the murder of Arshad Begum on 30.09.2009 has given opportunity to both prosecution and the defense to produce the witnesses, in the process one witness. 16. The omission in framing the charge vis-a-vis murder of Arshad Begum has not caused any prejudice to the defense for two reasons; (a) Firstly learned Trial Court in effect after framing the charge regarding the murder of Arshad Begum on 30.09.2009 has given opportunity to both prosecution and the defense to produce the witnesses, in the process one witness. Altaf Hussain had been produced whereas regarding three other witnesses Mohd. Hussain, S.L. Dalia, and Shri Raghunandan Singh, prosecution as well as defense has not shown inclination to examine them afresh. I.O. Harbans Lal is shown to have been again examined on 05.08.2010. When such precautionary measures have been taken during the trial so as to ensure fair trial, it cannot lie in the mouth of the defense to say that accused were prejudiced during the trial. 17. Apart from the aforesaid position, the omission on 29.06.2005 regarding the murder of 2nd lady Arshad Begum is curable in terms of Section 535 Cr.P.C. and Section 537 Cr.P.C. The said two sections for facility of reference are quoted herein below: "535. Effect of omission to prepare charge (1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge. 537. (2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge. 537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account- (a) of any error, omission or irregularity in the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial or any inquiry or other proceedings under this code or (b) of any error, omission or irregularity in the charge, including any mis-joinder of charger; [unless such error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice]." (Emphasis Supplied) Section 535 clearly envisages that it is only when failure of justice has been occasioned by an omission to frame a charge, the Court of appeal or revision shall have to order for framing of charge and recommencement of the trial from the point immediately after framing of the charge. Whereas Section 537 Cr.P.C. Clause (b) applies to the present case which envisages that in case of error, omission or irregularity in the charge, there will be an adverse impact only when the omission in effect occasioned a failure of justice. 18. Now the question which arises for consideration is as to whether due to the omission regarding the murder of Arshad Begum in the charge framed on 29.06.2005, failure of justice is occasioned. Answer is in negative because (I) while going through the testimony of the witnesses who have been produced, it is clear that regarding the murder of both Amina Begum and Arshad Begum, witnesses have deposed and they have been cross-examined which means the position of the charges was clear to the defence. Answer is in negative because (I) while going through the testimony of the witnesses who have been produced, it is clear that regarding the murder of both Amina Begum and Arshad Begum, witnesses have deposed and they have been cross-examined which means the position of the charges was clear to the defence. (II) Here we may hasten to add that even where no charge is framed but in case defense is aware of the allegations and the charge regarding which accused faced the trial, non-framing of charge will not have effect on the findings or sentence pronounced except of course where the Court of appeal or revision thinks failure of justice has been occasioned by an omission then still recommencement of trial is prescribed for. 19. In the case on hand, records and the evidence clearly reveal that both prosecution and the defense counsel have been consciously dealing with the case regarding murder of both Mst. Arshad Begum and Mst. Amina Begum. The contention is as such rejected. In our view, we are fortified by the judgment rendered by the Hon'ble Apex Court in the case of Darbara Singh v. State of Punjab, reported in (2012) 10 SCC 476 . Para 20 and 21 are relevant to be quoted: "20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 Cr.P.C., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s). 21. 21. 'Failure of justice' is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be 'failure of justice'; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence. 'Prejudice', is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can, seek benefit under the orders of the Court. (Vide Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114 ; Rattiram & Ors. v. State of M.P. through Inspector of Police, AIR 2012 SC 1485 ; and Criminal Appeal No. 46 of 2005 (Bhimanna v. State of Karnataka) decided on 4th September, 2012)." 20. The next learned counsel for the appellants argued that the charges against the appellants are not proved. The occurrence, i.e. brutal killings of two young ladies that too in ruthless manner is not denied but the same act has not been committed by the appellants. They have been implicated wrongly. The identity of the assailants has remained a mystery which has not been unfolded. For the acts of unknown terrorists, appellants could not be held guilty. The prosecution evidence by itself is not satisfactory. They have been implicated wrongly. The identity of the assailants has remained a mystery which has not been unfolded. For the acts of unknown terrorists, appellants could not be held guilty. The prosecution evidence by itself is not satisfactory. Elaborating the submissions, learned counsel would submit that: (i) Admittedly occurrence has taken place at 9 pm to 10 pm in the intervening night of 1/2nd August, 2001; (ii) On 2nd August, 2001, police on the basis of source information has registered the case as FIR No. 16/2001, P/s. Basantgarh mentioning therein that unknown persons with some sharp-edged weapons have killed the two ladies. Police on the same date, i.e. 2.8.2001 visited the spot and recorded the statement of some witnesses but no one divulged the name of the appellants instead they said that unknown militants had killed the two ladies. 21. In case appellants would have been the assailants then their identity would have been disclosed to the investigating officer on 2nd August, 2001. Zahoor Ahmed being the husband of Mst. Amina Begum (deceased) and Mst. Afroza Bano being the daughter of the deceased (Arshad Begum), till 13.08.2001 never disclosed that the appellants were the assailants. 22. Mst. Afroza Bano disclosed the names of the appellants but her testimony to the same effect is not free from doubt because, 'according to the testimony of Mst. Afroza Bano, daughter of the deceased (Arshad Begum) at the time of occurrence, she (Afroza), Mohd. Guftar (brother) and their mother Arshad Begum (deceased) were present when the accused entered into their house. She has also stated that she, her Aunt (Mst. Farzi Begum) and her Uncle (Mohd. Jameel) came out when her mother was forcibly taken away by the accused. The said Farzi Begum and Mohd. Jameel were not cited as witnesses by the police, however in defense these two persons have been produced who have not supported the version of Mst. Afroza Bano. 23. According to Zahoor Ahmed, husband of Mst. Amina Begum (deceased) at the time of occurrence i.e. 10 pm, he (Zahoor Ahmed), his daughter Mariyam Akhter and his wife Amina Begum (deceased) were available in the house. Mariyam Akhter has not been cited as witness. 24. Learned Trial Court has dealt with this aspect but has concluded that Zahoor Ahmed and Mst. Amina Begum (deceased) at the time of occurrence i.e. 10 pm, he (Zahoor Ahmed), his daughter Mariyam Akhter and his wife Amina Begum (deceased) were available in the house. Mariyam Akhter has not been cited as witness. 24. Learned Trial Court has dealt with this aspect but has concluded that Zahoor Ahmed and Mst. Afroza Bano were the most natural witnesses, their testimony has not been impeached, same inspires confidence for recording the conviction but in the process, learned Trial Court has not given any value to the statement of the defence witnesses, namely, Mst. Farzi Begum and Jameel Ahmed who according to Mst. Afroza Bano were present at the time of occurrence. In addition thereto the non identity of the assailants from the date of occurrence 1/2nd August, 2001 till 13.08.2001 was not divulged by Afroza. This aspect too has not been properly looked into by the Trial Court. 25. The prosecution case as rightly observed by the learned Trial Court totally hinges on the testimony of the two witnesses, PW-Afroza Bano and PW-Zahoor Ahmed. 26. Whether the testimony of these two witnesses can be accepted in absence of corroboration and in absence of explanation for not divulging the names of the assailants by P.W. Afroza from 1/2nd August, 2001 to 13.08.2001. 27. Learned Trial Court has accurately and briefly quoted the statements of the witnesses of the prosecution as well as of the defense. 28. First, we shall deal with the murder of Mst. Arshad Begum. PW-Afroza Bano (daughter of Mst. Arshad Begum) has stated that at 9 pm on the date of occurrence, her brother Mohd. Guftar and her mother were present in the kitchen. All the three accused (appellants) entered into the kitchen, they were armed. They asked her mother to take them to the house of Mst. Amina (another murdered lady) which she refused. She (Arshad Begum) was forcibly dragged out by them, ten minutes later, voice of her mother was heard crying (mother save her). Accused Mushtaq asked them (Mohd. Guftar and Mst. Afroza Bano) not to come out. Further stated that she (Afroza) along with her aunt Farzi Begum and uncle Mohd. Jameel came out and saw that accused Mushtaq had killed her mother by tying her with the rope and slitting her throat. Accused then went to the house of Amina and slaughtered her too after tying her with the rope. Afroza Bano) not to come out. Further stated that she (Afroza) along with her aunt Farzi Begum and uncle Mohd. Jameel came out and saw that accused Mushtaq had killed her mother by tying her with the rope and slitting her throat. Accused then went to the house of Amina and slaughtered her too after tying her with the rope. (a) Mohd. Guftar brother of the witness (Afroza) has not been cited as witness nor any explanation has been offered for withholding such an important witness, so adverse inference has to be drawn. (b) Mst. Farzi Begum and Mohd. Jameel who are the aunt and uncle of the witness Afroza Bano were not cited as prosecution witnesses but they have been produced by the defense as defense witnesses, so have been examined. DW-1 Mohd. Jameel has stated that Arshad Begum was sister-in-law (Brother's wife). His house is situated in front of the house of the Arshad Begum. On 01.08.2001 at about 10 pm wrongly reflected by the Trial Court when it is 8/9. Farzi Begum was also there. Two children were sitting in the house of Arshad Begum. Somebody knocked the door. Arshad Begum went to open the door but did not return back for about 10/15 minutes. On hearing her voice, he and Farzi Begum went to see her but found her dead body lying on the backside of the house. It was dark. There was no one present. Afroza Bano is the daughter of the deceased, on the date of occurrence, she was eight years old. All the accused are known to him. It is wrong that accused came there with guns and committed the act. It is also wrong that accused have entered into the house and took the deceased out of house. Arshad Begum was killed by slitting of throat and was lying at a distance of 20/25 feet from her house. DW-Farzi Begum has stated that deceased was her sister-in-law (brother's wife). She had come to parental house. Her brother Nizamudin, a labour, had gone out of State for labour. She alongwith Jameel were sitting in the house. Someone knocked the door. Arshad Begum went out to see the person but did not return for about ten minutes. The daughter of the deceased was asleep. It was about 9 pm when she saw Arshad Begum was killed by slitting her throat. She alongwith Jameel were sitting in the house. Someone knocked the door. Arshad Begum went out to see the person but did not return for about ten minutes. The daughter of the deceased was asleep. It was about 9 pm when she saw Arshad Begum was killed by slitting her throat. Only dead body of Arshad Begum was found lying outside the house. No one was there. None of the accused was found present there at that time. On the cross-examination of the PP, she has stated that accused are known to her. She did not see anyone coming inside the house. Someone had killed Arshad Begum and thrown her on the backside of the house on the stones in the pathway. 29. Now the question who is to be believed, PW-Afroza Bano daughter of the deceased who was just eight years old at the time of the occurrence or Jameel Ahmed, uncle of the Afroza Bano and Mst. Farzi Begum aunt of the witness. To make it more clear, Jameel Ahmed is the brother of husband of the Arshad Begum (deceased). Mst. Farzi Begum is the sister of the husband of the Arshad Begum. Both are close relatives. 30. It is not a case that testimony of the close relatives cannot be accepted. Close witnesses rather related witnesses at times are the most natural witnesses; only caution is to, appreciate their testimony with circumspection. 31. Learned Trial Court has observed that why should Afroza witness (daughter of the deceased) implicate the appellants. But equally true is why Jameel Ahmed and Mst. Farzi Begum who are equally close relatives would say that the appellants have not committed the act or would say that accused were not present on spot. When Mst. Afroza (daughter of the deceased), who has stated in clear terms that it is she, Jameel Ahmed and Mst. Farzi Begum who came out and found accused Mushtaq Ahmed had killed Mst. Arshad Begum by slitting her throat. There is no explanation which would persuade us to hold that Mst. When Mst. Afroza (daughter of the deceased), who has stated in clear terms that it is she, Jameel Ahmed and Mst. Farzi Begum who came out and found accused Mushtaq Ahmed had killed Mst. Arshad Begum by slitting her throat. There is no explanation which would persuade us to hold that Mst. Farzi Begum and Jameel Ahmed are not to be believed, whereas about statement of Afroza, there is doubt for the following reasons: (i) First she was eight years old at the time of occurrence; (ii) She has also stated that her brother Guftar Ahmed was present in the house but he has not been cited as a witness, so has been withheld giving rise to drawing of adverse inferences. (iii) It is she who while making statement before the trial Court has stated that she, Jameel Ahmed and Farzi Begum came out and found Mushtaq Ahmed had killed Arshad Begum by slitting her throat, so presence of Jameel Ahmed and Farzi Begum on spot is proved by her; (iv) If assailants (appellants) were known to Mst. Afroza why she had not shared their names with anyone. At least, she could share the same with her maternal uncle (Mama), PW-Mohd. Hanief. PW-Mohd. Hanief has been examined as prosecution witness who has categorically stated that his sister (Arshad Begum) was slaughtered by militants. On receiving information, he went on spot and found the dead body drenched in blood. In the cross-examined has made it clear that he got information of the occurrence in the morning, he was told that some masked militants had come there but they were not identified by anyone. 32. Altaf Hussain who too is the brother of Mst. Arshad Begum firstly was not produced and examined but subsequent after rectification of the omission and after reframing of the charge he was produced by prosecution and examined. Even to him, Mst. Afroza had not divulged name of the assailants. Altaf Hussain (brother of the deceased Arshad Begum) has qualified that Arshad Begum was his sister. Deceased Arshad Begum and Amina Begum were murdered by unknown persons by slitting their throats. In the cross examination he has qualified that on the next date of occurrence when he reached the house of the deceased, he was told that assailants were unknown persons. Zahoor Ahmed also told him that some unknown persons had committed the murder. Deceased Arshad Begum and Amina Begum were murdered by unknown persons by slitting their throats. In the cross examination he has qualified that on the next date of occurrence when he reached the house of the deceased, he was told that assailants were unknown persons. Zahoor Ahmed also told him that some unknown persons had committed the murder. He has further stated that police next morning came on spot. The police was told by the members of the family of the deceased that the persons who committed the murder of the ladies were not known to them. It is but natural that at least Afroza could share with her maternal uncles Altaf Hussain and Mohd Hanief about the identity of the assailants and in case that would have been done, then the identity of the assailants would have been known to P.W. Afroza. It is only on 13.08.2001 after a gap of 12 days, statement of Afroza was recorded wherein she mentioned the names of the appellants and another accused who is dead. 33. Now coming to the statement of the Zahoor Ahmed husband of Mst. Amina. Whether that inspires confidence about its truthfulness regarding the identity of the assailants. He has stated that at about 10 pm he along with his wife was present in his home whereas daughter Mariyam Akhter was sleeping in the adjoining room. Someone knocked the door. His wife Mst. Amina Begum opened the door. Accused Mushtaq Ahmed present in the Court started talking to her, then four persons entered in, fourth person Mohd Abbas is not present in the Court. Accused Mushtaq Ahmed told his wife she is working for police as an informer and is having illicit relations with police personnel which his wife denied. Then all the three accused dragged her out, in the meantime, accused Mohd. Abbas came. He (witness) was also dragged out and stationed in front of the wall on the verandah of the house. Accused Mushtaq Ahmed and Gul Mohd. tied the rope around the neck of his wife and dragged her out, whereas Mohd. Abbas handed over knife to Mohd. Hussain who slaughtered his wife. The rope remained around the neck of the Amina Begum. He remained silent out of fear. He himself had gone to police and police came on spot. Accused Mushtaq Ahmed and Gul Mohd. tied the rope around the neck of his wife and dragged her out, whereas Mohd. Abbas handed over knife to Mohd. Hussain who slaughtered his wife. The rope remained around the neck of the Amina Begum. He remained silent out of fear. He himself had gone to police and police came on spot. In the cross-examination of the counsel for the accused has stated that the police post is at a distance of one and half kilometres from his house. House of Arshad Begum is at a small distance. He had gone for informing the police at 5 in the morning. Police had recorded his statement on spot whereas only report was lodged at the police station, one Havildar, second officer and other police personnel came on spot. The accused were not masked. Accused had dragged his wife up to a distance of twenty feet, whereas they had locked his daughter inside the room, however she could see from the window. Only three persons, i.e. he, his wife and daughter were present in the house on that day. He did not raise any alarm during occurrence as the accused had threatened him, so he could not inform anybody immediately out of fear. 34. The important question about the credibility of this witness Zahoor Ahmed is that; (i) According to him he had informed the police at 5 in the morning whereas in FIR, it is recorded that source information was received. I.O. too has stated that source information was received, so a lie, in case he would have informed the police at 5 next in the morning then he would have named the assailants; (ii) According to him, his daughter was locked inside the room but she could see from the window. The said daughter Mst. Mariyam Akhter has not been cited as witness. So has been withheld giving rise to drawing of adverse inferences. (iii) In case names of the assailants were known to Zahoor Ahmed, husband of Mst. Amina Begum, he would have shared the names with anyone including the police when he went to police at 5 am on 02.08.2001. This position has remained to be explained. So a serious doubt about the identity of the assailants. 35. (iii) In case names of the assailants were known to Zahoor Ahmed, husband of Mst. Amina Begum, he would have shared the names with anyone including the police when he went to police at 5 am on 02.08.2001. This position has remained to be explained. So a serious doubt about the identity of the assailants. 35. I.O. in his statement has made it clear that on 02.08.2001 he recorded statements under Section 161 Cr.P.C. of eye-witnesses Zahoor Ahmed and Mangtullah who had seen the occurrence. He got transferred during investigation and the rest of the investigation was conducted by his successor. In the cross-examination, he has stated that information received by him was that unknown militants had murdered Mst. Arshad Begum and Mst. Amina Begum. He went on spot on 02.08.2001. He recorded statement of Mushtaq Ahmed S/o. Mangtullah, Altaf Hussain S/o. Mohd. Yousuf, Mohd. Saif, S/o. Mohd. Yousuf on 02.08.2001. Mst. Amina was sister of PW-Mushtaq Ahmed. Arshad Begum was sister of Altaf Hussain. These witnesses had stated about unknown militants. They have not named any accused. Statement of Afroza daughter of Nizamudin was recorded on 13.08.2001. During investigation it appeared that deceased were tied with ropes around their neck and were dragged and slaughtered with sharp-edged weapon. He has seized rope with which deceased were tied. Arshad Begum was dragged 100-150 feet from her house in the field in which maize crop was grown. Statement of Nizamudin husband of deceased Arshad Begum was recorded on 13.08.2001 as he had gone to Himachal Pradesh to work as labour. He has not prepared the seizure memo of rope or knife. PW-Mushaq Ahmed brother of Mst. Amina (deceased) had reached to spot on 02.08.2001, in case, Zahoor Ahmed would have identified appellants or the assailants then at least he would have shared it first with the police when he claims to have reported the matter to the police at 5 in the morning, then in natural course of events at least he would have shared it with PW-Mushtaq Ahmed who was none-else but brother of the deceased Amina Begum. Non-sharing the identity of the assailants with said PW-Mushtaq Ahmed also give rise to doubt about the testimony of the Zahoor Ahmed vis-a-vis identity of the assailants. Said PW-Mushtaq Ahmed has clearly stated that he does not know who killed his sister (Mst. Non-sharing the identity of the assailants with said PW-Mushtaq Ahmed also give rise to doubt about the testimony of the Zahoor Ahmed vis-a-vis identity of the assailants. Said PW-Mushtaq Ahmed has clearly stated that he does not know who killed his sister (Mst. Amina), then has qualified that deceased were killed by militants. PW-Altaf Hussain brother of Arshad Begum has also qualified that deceased Arshad Begum and Amina Begum were murdered by unknown persons by slitting their throats. He has further qualified that Zahoor Ahmed (husband of Amina Begum) told him that some unknown persons had committed the murder and then has also stated that police was told by the members of the family of the deceased that persons who committed the murder of the ladies were not known to them. PW-Mohd. Hanief brother of Arshad Begum (deceased) has also qualified that he was told that some masked militants had come there but they were not identified by anyone. PW-Mohd. Hussain a civilian witness resident of the village has stated that he has no knowledge about the occurrence. He was declared hostile. In the cross-examination has stated that the daughter of the deceased was present in the house at that time but he has no knowledge of the occurrence. In the cross examination of the counsel for the defense has stated that daughter of his brother was present in the house at the time of the occurrence who told him that some masked militants had taken away Arshad and Amina Begum. 36. Again a very important circumstance that is according to PW-Zahoor Ahmed husband of Mst. Amina, all the accused dragged his wife out of his house. The rope remained around the neck of Amina Begum. When Amina was dragged out and rope was put around her neck, there would have been some injury marks or at least a ligature mark. PW-Dr. S.L. Dalia has not said so. Therefore, it shall be totally unsafe to believe his testimony regarding the identity of the assailants. "In our view, we are fortified by the judgment rendered by Hon'ble Apex Court in the case Sampath Kumar v. Inspector of Police, Krishnagiri (2012) 4 SCC 124 . Para 26 and 28 are relevant to be quoted: "26. Therefore, it shall be totally unsafe to believe his testimony regarding the identity of the assailants. "In our view, we are fortified by the judgment rendered by Hon'ble Apex Court in the case Sampath Kumar v. Inspector of Police, Krishnagiri (2012) 4 SCC 124 . Para 26 and 28 are relevant to be quoted: "26. This Court in Vadivelu Thevar v. The State of Madras ( AIR 1957 SC 614 ) classified witnesses into three categories, namely, (i) those that are wholly reliable, (ii) those that are wholly unreliable and (iii) who are neither wholly reliable nor wholly unreliable. In the case of the first category the Courts have no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of a single witness if it is found to be fully reliable. In the second category also there is no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon the deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial. (Emphasis added) 28. In the present case the testimony cannot be wholly reliable or wholly unreliable. He is not a chance witness who had no reason to be found near the deceased at the time of the occurrence. There is evidence to show that Palani (PW7) used to sleep with the deceased-Senthil in the verandah of the house. What makes it suspect is that the witness has, despite being a natural witness, made a substantial improvement in the version without their being any acceptable explanation for his silence in regard to the fact and matters which was in his knowledge and which would make all the difference in the case. The Court would, therefore, look for independent corroboration to his version, which corroboration is not forthcoming. All that is brought on record by the prosecution is the presence of a strong motive but that by itself is not enough to support a conviction especially in a case where the sentence can be capital punishment." (Emphasis added) 37. It is quite unfortunate that two young ladies at the prime of their life have been murdered brutally. Conscience gets shocked. It is quite unfortunate that two young ladies at the prime of their life have been murdered brutally. Conscience gets shocked. The criminals who have committed this dastardly act have remained to be punished. 38. Learned Trial Court has been very sensitive regarding the gruesome murder committed but in the process appears to have been swayed by sentiments because: (a) while appreciating the evidence has missed to focus on the testimony of the two other related witnesses i.e. PW-Mohd. Hanief, PW-Altaf Hussain brothers of the deceased Arshad Begum and also of PW-Mushtaq Ahmed brother of Mst. Amina Begum (deceased), has also missed to take notice of withholding of witness i.e. Mst. Mariyam Ahkter D/o Zahoor Ahmed, (b) Trial Court has also erred in not correctly appreciating the testimony of two defense witnesses i.e. Jameel Ahmed and Farzi Begum who were named by the Mst. Afroza Bano daughter of the deceased Arshad Begum to be present at the scene of occurrence. Though they were not produced by prosecution but were produced in defense by the accused. How could their testimony be rejected when they were named by PW-Afroza and were respectively her uncle and aunt (her father's brother and sister). The learned Trial Court while relying on the testimony of the PW-Afroza Bano and PW-Zahoor Ahmed has ignored the other prosecution witnesses and the defence witnesses. (c) It is trite that the standard of proof vis-a-vis defence has to be on the principle of preponderance of probabilities. (d) The cardinal principle of criminal jurisprudence is that the accused are presumed to be innocent until proved guilty. It is also settled principle that guilt against the accused shall be proved beyond shadow of doubt. 39. The testimony of the two witnesses PW-Afroza Bano and Zahoor Ahmed is not free from doubt the identity of the assailants has remained a mystery. We are not persuaded to accept the testimony of PW-Afroza Bano and Zahoor Ahmed in absence of corroboration that too in the backdrop of the fact and circumstances as quoted hereinabove so as to inspire confidence for recording conviction. 40. In our view, the doubtful position about the identity of the assailants favours the appellants (accused). Therefore, appellants are entitled to benefit of doubt, so are, accordingly, acquitted. 41. In the upshot the appeal is allowed, judgment dated 26.04.2011 and order dated 27.04.2011 impugned are set aside. 40. In our view, the doubtful position about the identity of the assailants favours the appellants (accused). Therefore, appellants are entitled to benefit of doubt, so are, accordingly, acquitted. 41. In the upshot the appeal is allowed, judgment dated 26.04.2011 and order dated 27.04.2011 impugned are set aside. Reference for confirmation of the imprisonment for life is rejected. The appellants (accused) be released forthwith, if not required in connection with any other case. Trial court record along with copy of the judgment be sent back to the trial court. 512. Record of evidence in absence of accused (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, is his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the enquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. (2) Record of evidence when offender unknown.-If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court may direct that any 9 [Judicial Magistrate] of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Jammu and Kashmir State.