Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 811 (JK)

Bilal Ahmad Banday v. State of J&K

2017-09-07

BADAR DURREZ AHMED, M.K.HANJURA

body2017
Judgment M.K. Hanjura, J.—The string of incidents, put in a sequence as they emerge from the study of the file under consideration are as follows: 2. On 1st of May 2006 at 3.45 p.m the police authorities of Police Post Khurhama, came to know from reliable source that some unknown persons wielding guns fired gun shots indiscriminately at Khurhama market, as a consequence of which two persons namely, Mohammad Altaf Lone S/o Abdul Aziz Lone and Abdul Yasim Bhat S/o Ali Mohammad Bhat, both residents of Tikkipora Khurhama, sustained bullet injuries. Mohammad Altaf Lone died on spot and Abdul Yasim Bhat sustained injuries. Both the deceased and the injured were before the incident working in 8 Sector, R.R as sources. They too were armed. This information was forwarded by the Police Authorities of Police Post Khurhama to S.H.O Police Station Lalpora, where a case for offences punishable under section 7/27 Arms Act, and section 302 RPC was registered vide FIR No.23/2006 with which the investigation of the case commenced. 3. During the investigation what surfaced is that the accused Bilal Ahmad Banday S/o Abdul Khaliq Banday R/O Warnoo, Lolab, was working with SOG Group Warnoo. He fired at the deceased and the injured with the intention to kill them. It also appeared that the accused was accompanied by two of his associates, namely Zulfikar Ayoub Malik and Nisar Ahmad Gagad. They too were armed with AK-47 rifles. Arms and ammunition were recovered from them. These were forwarded to FSL Srinagar for expert opinion. The finger prints of the accused were taken. These were forwarded examination to FSL for opinion. The seizure memos were prepared. The site plan was prepared and the dead body was taken into possession. The postmortem examination of the deceased was conducted. His wearing apparels were seized. Since the deceased and the injured were armed at the moment, therefore, these were seized. Eleven cartridge cases fired from AK-47 rifle were also seized. The statements of the witnesses conversant with the facts and circumstances of the case were recorded under section 161 Cr. P.C. The two associates of the accused were released in terms of section 169 Cr. P.C. 4. It also came into limelight during the course of the investigation of the case that the deceased and the injured Abdul Yasin had strained relations with the accused. P.C. The two associates of the accused were released in terms of section 169 Cr. P.C. 4. It also came into limelight during the course of the investigation of the case that the deceased and the injured Abdul Yasin had strained relations with the accused. The accused had asked the deceased and the injured to work for SOG Warnoo. The deceased and the injured did not agree to do so. A fight had ensued between them prior to this incident, also on that count. The accused had threatened the deceased and the injured to be prepared to face the consequences and ultimately he fired upon them. 5. On the completion of the investigation of the case, a charge sheet for the commission of offences punishable under section 302/326 RPC was preferred in the court of Learned Judicial Magistrate Sogam against the accused. The Learned Judicial Magistrate committed the case to the Court of Learned Sessions Judge Kupwara in terms of section 205 Cr. P.C. The accused was charged for the commission of offences punishable under section 302, 326 RPC vide order dated 06.09.2006 of the Trial Court. The accused denied the charge. He claimed to be tried, and, accordingly prosecution was asked to produce evidence in support of its case. Prosecution examined as many as 21 witnesses namely S/Shri Abdul Yasin Bhat, Tariq Ahmad, Syed Atiq Ullah, Syed Masood Ahmad, Bashir Ahmad Malik, Manzoor Ahmad Malik, Ms. Tasleema, Abdul Rashid, Javaid Ahmad Teeli, Nisar Ahmad Lone, Abdul Hamid Lone, Dr. Aijaz Ahmad Qadri, Dr. Manzoor Ahmad, Javiad Ahmad Mir, Mushtaq Ahmad Head Constable, Altaf Ahmad Khan, Abdul Gani Malik, Ali Gulam Head Constable, Abdul Majid, Mohammad Akber Assistant Sub Inspector and Mohammad Latief Sub Inspector to bring the guilt of the accused home to him. 6. The prosecution evidence was closed on 25.05.2011 and the case was posted for recording the statement of the accused under section 342 Cr. P.C. This statement of the accused was recorded on 14.09.2011. The accused in his statement denied the occurrence and the case was posted for advancing arguments in terms of section 273 Cr. P.C. The Trial Court directed that it was not a case of no evidence and asked the accused to produce his evidence in defence. However, on the date fixed for recording the evidence in defence, the prosecution moved an application under section 540 Cr. P.C. The Trial Court directed that it was not a case of no evidence and asked the accused to produce his evidence in defence. However, on the date fixed for recording the evidence in defence, the prosecution moved an application under section 540 Cr. P.C which was allowed and one more witness namely Sh. S.M. Shafi, Ex. Deputy Director, FSL was examined in the court on 17.09.2011 taking the number of witnesses examined to 22. The Statement of this witness was again put to the accused in his statement recorded on 03.10.2011 under section 342 Cr. P.C. The accused in answer to it stated that a rifle and the ammunition were seized from him. The rifle was in working condition. Some gun shots were fired from all sides. He, on the asking of constable Zulfiqar, fired five rounds in air to save his life. No one died or received injuries at his hands. Someone fired upon the deceased. He cannot narrate the cause of the death of the deceased. After recording the statement of the accused, the case was posted for advancing arguments. On the culmination of the case, the accused was convicted and sentenced to undergo simple imprisonment for life and a fine of Rs.5000/-. In default of the payment of fine the accused was directed to undergo simple imprisonment for three months. 7. The accused assailed the judgment of conviction and sentence in an appeal filed before this court on the grounds, inter alia, that the judgment under appeal is against facts, law and canons of justice. The trial court has not applied its mind to the facts and circumstances of the case. The trial court while recording the conviction, has failed to appreciate the evidence. The witnesses of the prosecution have not proved that the accused had any role to play in the commission of the crime attributed to him. The accused was never identified to be the person involved in the commission of the crime imputed to him during the course of the investigation or trial. The judgment has been passed on surmises and conjectures. It is a case of no evidence and the trial court has failed to appreciate the law and the facts. In the premises the appellant has prayed that the judgment under appeal be set-aside and he be acquitted of the charges leveled against him. 8. The judgment has been passed on surmises and conjectures. It is a case of no evidence and the trial court has failed to appreciate the law and the facts. In the premises the appellant has prayed that the judgment under appeal be set-aside and he be acquitted of the charges leveled against him. 8. We have heard the arguments advanced at the bar and the material on record has also been perused by us. 9. The core issue that arises for consideration is whether, while recording the judgment of conviction and sentence, the prosecution evidence has been properly appreciated and in the right perspective. The Ld. Trial court has recorded the entire evidence in its breadth and length in the impugned judgment and the same does not require to be repeated here. The trial court, as is clear from the impugned judgment, has, after taking into consideration the entire evidence adduced by the prosecution, come to the conclusion. 10. The law is that the function of the court in a criminal trial, is to find out whether a person arraigned before it, as the accused, is guilty of the offence with which he is charged. For this purpose the court scans the material on record to find out whether there is any credible, reliable and trustworthy evidence on the basis of which it is possible to convict the accused and to hold that he is guilty of the offence with which he is charged. The burden to prove the ingredients of the offence is always on the prosecution and it never shifts to the accused. 11. Testing the prosecution case on these parameters, the conviction appears to have been recorded in the instant case on the solitary statement of Nisar Ahmad Lone as far as the ocular evidence is concerned. Looking at his statement in order to find out whether it does breed confidence in the eyes of a reasonable and prudent man it may not be out of place to state here that in his statement recorded by the Investigating Agency under section 161 Cr. P.C on the very day of occurrence he has stated that he heard gun shots all around. He fled away. He reached at the spot after the firing came to an end and he saw the dead body of a person lying down who was his brother. P.C on the very day of occurrence he has stated that he heard gun shots all around. He fled away. He reached at the spot after the firing came to an end and he saw the dead body of a person lying down who was his brother. He has not spelt out the identity of the accused in his statement recorded by the Investigating Officer. The crux of the statement of this witness recorded by the court is that the accused was not known to him prior to the occurrence. He has never seen him before. The deceased was his brother. He had been to the school on the date of occurrence. He saw three persons wielding the guns. They were standing on a varanda. He was in the school up to 16.00 hours. The accused way laid the deceased and fired a gun shot on him. He saw him at the spot. The police authorities recorded his statement on the next day after the occurrence. The police authorities told him to identify the accused. However, he did not see him. In his cross examination he has stated that he did not see the accused from the date of occurrence to the date of his examination before the court. He has seen him in the Court for the first time after the incident. The identity of the accused was disclosed by his father. He (his father) told him that the name of the accused is Bilal. When he came to the court his father told him that the accused is the person who killed the deceased. He (his father) pointed his finger towards the accused and thereafter his father divulged the identity of the accused before him. He did not know the name of the accused and the police authorities did not conduct any identification parade. The occurrence took place at about 4.00 p.m. 12. Looking at the statement of this witness recorded by the trial court it is conclusively established that he did not know the name of the accused up to the date of his examination before the court and it was at the behest and on the asking of his father that he divulged his identity. There is not even a grain of evidence in his statement under section161Cr. There is not even a grain of evidence in his statement under section161Cr. PC to state that the accused fired a gun shot on the deceased as a consequence of which he died. Had the witness namely, Nisar Ahmad Lone, seen the accused on the date of occurrence he would have made it known by a blush. Subsequently also this question elicited no response upto the date the charge sheet was laid against the accused before the Court. This bolt from the blue came out of a great lull. It was during the trial of the case when he was examined as a witness on 29.04.2008 that he named the accused. By then a lot of water had flown down the Jehlum. The law on the subject is clear. In the case of State of Orisa v. Brahmananda reported in AIR 1976 SC 2488 which applies in all the fours to the instant case, it has been held as under: “Where in a murder case the entire prosecuting case depended on the evidence of a person claiming to be eye witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the high court was correct in rejecting it as untrustworthy and acquitting the accused” 13. The same view has been reiterated in the case of Ramreddy Rajesh Khanna Reddy and another v. State of Andhra Pradesh, reported in 2006 (10) SCC 172 (Para 5) wherein it has been held as follows:- “The High Court, however, did not agree with the said views of the learned Sessions Judge opining:” “At the outset, we must make it clear that we are not inclined to believe the evidence of PW-9, the alleged eye-witnesses to the occurrence who was examined by the police two days after the registration of the crime though he was present at the scene of the offence at the time of the inquest he never chose to inform the police about the fact that he had witnessed the murder.” 14. Spelling out the name of the accused not within days and months but after an approximate period of three years from the date of occurrence, which in the instant case is 01.05.2005 is a serious flaw that by itself demolishes the entire prosecution edifice. In the two judgements of law cited above, which for us are as sacred as a command one and a half days delay and 2 days delay in divulging the identity of the assailant has been termed to be a serious infirmity having the effect of destroying the credibility of the witness. This sole state debilitates and hinders the effectiveness of the prosecution case and it by itself is sufficient to acquit the accused. Judicial process can be issued on the firm foundations of solid and credible evidence and not otherwise. 15. This case, as is reiterated here, rests upon the sole statement of Nisar Ahmad Lone who has turned around and made diametric contradictions. There is nothing further to connect the accused with the offence. There is not even an iota of evidence in the testimony of the other witnesses to state that they saw the accused committing the crime with which he was charged. There is no doubt that the chemical analysis of the seized rifles made vide the memo of seizure marked as Ex, P-16/1 has been done. However, what was required to be done was to find out whether the shots from the gun that the accused was handling at the moment were the ones that hit the deceased. The doctor who conducted the post mortem of the deceased has not been examined by the prosecution. His statement has been withheld. However, from a bare look of his report, what is brought to the fore is that the deceased died of gun shots. Which gun shots hit him and what could have been the make and the shape of the gun has not been unraveled by any evidence? 16. The other facet of the case is that no identification parade was conducted in the instant case. It will be profitable to quote the relevant portion of the law laid down in State of M.P v. Padam Singh, 1973 Cr.L.J 877 to find an answer to the question whether an identification parade, under the facts and circumstances of the case, was necessary to be conducted. It will be profitable to quote the relevant portion of the law laid down in State of M.P v. Padam Singh, 1973 Cr.L.J 877 to find an answer to the question whether an identification parade, under the facts and circumstances of the case, was necessary to be conducted. It read as under: “Identification parade is necessary where the accused is not known to the witnesses and they get an opportunity to see him only for a short while at or about the time of the commission of the offence. In such cases it is necessary to verify the capacity of the witnesses to identity the accused properly by holding a test parade. But no such test identification is necessary where the witnesses had occasion to be with the accused for quite a long time. In such cases there is no room for any mistake on the part of the witnesses in identifying the accused. The only question in such cases is whether the witnesses are telling the truth or not.” 17. In the case of Budhsen and Another v. State of U.P., reported in AIR 1970 SC 1321 , it has been held as follows: “The facts which establish the identity of an accused person are relevant under section 9 of the Indian Evidence Act. As a general rule the substantive evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification is to test the strength and trustworthiness of that evidence. It is accordingly considered a safe rule or prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them in the form of earlier identification proceedings. There may, however, be exceptions to this general rule, when for example, the court impressed by a particular witness on whose testimony it can safely rely, without such corroboration. The identification parades belong to the investigation stage. There may, however, be exceptions to this general rule, when for example, the court impressed by a particular witness on whose testimony it can safely rely, without such corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence who were not previously known to them. This serves to satisfy the investigation officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in the court………… 18. The law laid down in the case of Ram Gopal v. The State reported in AIR 1950 Pat 514 also assumes significance on that count and it is reproduced below: “The whole idea of such a parade is to see if the witness, who claims to have seen the accused at the time of occurrence, can identify him from amongst a number of other persons without and from any other source. If he can, then it becomes more or less certain that the evidence of identification as deposed by the witness in court is true and genuine. As a rule of prudence before a court can accept the evidence of identification as sufficient to establish the identity of an unknown accused the court necessarily looks to find some good corroborative evidence in support of that evidence. That corroborative evidence may come from various circumstantial factors; one of them being the evidence of test identification where the witness picks out the accused from amongst the number of persons with whom he is mixed up. But if a witness fails to identify an accused in court, his identification at the test identification parade has no value. One can understand the evidence of identification before the committing Magistrate being utilized as substantive evidence but not the evidence at the test identification parade”. 19. Individuals are differently endowed by nature in their intellectual, psychological, perceptual, cognitive and emotional apparatuses. It is, therefore, that there is no independent or objective opinion in the human world. The power to identify differs according to the power of observation and memories of the person identifying and each case depends on its own facts. The identification of the accused by Nisar Ahmad Lone lacks in scope and capacity. It is, therefore, that there is no independent or objective opinion in the human world. The power to identify differs according to the power of observation and memories of the person identifying and each case depends on its own facts. The identification of the accused by Nisar Ahmad Lone lacks in scope and capacity. He had the occasion to see the accused only on the date he was examined by the court and not before that. No identification parade has been conducted. The accused has been identified during the trial only and that too at the behest of the father of the deceased. Therefore, it can in no circumstances be said that his statement is trustworthy and a conviction can be sustained on his statement. He was a child of 12 years on the date of occurrence and extra care and caution has to be exercised in appreciating his statement. It is not possible to believe his presence at the scene of occurrence. His statement is inherently improbable and un-reliable as he did not have the occasion to see the accused. 20. The other feature of the case is that the police authorities of police post Khurhama cameo know about the occurrence from are liable source. The information was forwarded by the police authorities Khurhama to the concerned Police Station and the FIR was registered at 3.45 p.m. It might have taken some time for the police authorities to record this information in the relevant register. Therefore, it can be safely said that the occurrence took place prior to 3.45 p.m. Nisar Ahmad Lone has stated in his statement that he stayed in his school upto 4.00 PM and the occurrence took place at 4.15 Pm. This circumstance also goes in favour of the accused. It excludes the possibility of his presence at the place of occurrence at the given time. 21. Looking at the prosecution case, from another perspective, Abdul Yasin Bhat who was with the deceased at the time of his death and who received a gunshot as a consequence of which he sustained gunshot injuries, has turned volte face to the prosecution case. He has stated in his statement that he does not know the accused. On the date of occurrence, he traveled in a bus from Cheerkut to Khurhama alongwith the deceased. Both of them alighted from the bus. He has stated in his statement that he does not know the accused. On the date of occurrence, he traveled in a bus from Cheerkut to Khurhama alongwith the deceased. Both of them alighted from the bus. After 10 to 15 minutes they were caught inan indiscriminate firing. The deceased fell down. He received a bullet injury in his neck. The deceased succumbed to his injuries. He died. On enquiry by those who assembled at the spot, he told them that he could not identify anyone. However, some persons who had gathered there, said that the militants had fired the gunshots and some others said that it was the army who did so. In his cross examination he has stated that he and the deceased were working as army sources and the Army Unit where they were working, had provided them the weapons. He has seen the accused for the first time in the court. He did not see the person who fired upon them. 22. The cumulative effect of the statement of this witness namely, Abdul Yasin Bhat, is that he did not see the accused committing the crime, the commission of which has been imputed to him. He was the most important witness in the instant case. His presence at the spot can never be doubted or disputed. The evidence of an injured witness has to be and is always treated on the highest pedestal. Resort can in this behalf be had from para 27 of the law laid down in case State of U.P v. Naresh and others reported as 2011 (4) SCC 324 . Where it has been held as under: “The evidence of an injured witness must be given due weight age being a stamped witness, thus his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he would spare the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.” 23. The statement of the witness cannot be disbelieved. He has shown his back and buckle to the prosecution. He has stated that he did not see the accused firing the gunshots on the deceased. He has further stated that the persons who had assembled at the spot, narrated that the army personnel or the militants were involved in the incident. The evidence of this witness has to be relied upon unless there are grounds for its rejections which we did not find in the instant case. The prosecution has not put any question to this witness relating to his previous statement recorded under section 161 Cr. P.C. This could have been done after invoking the aid and assistance of section 154 of the Evidence Act. He has not been declared hostile, meaning thereby that the prosecution has accepted his statement as a gospel truth and his statement turns the prosecution case topsy-turvy. 24. Another circumstance which has been relied upon by the trial Judge in carving out a case for the prosecution is the statement of the Investigating Officer buttressed with that of FSL expert. In the judgment impugned, it has been stated that the statement of the I.O is that the rifle which was used in the commission of crime, was seized from the possession of the accused and the accused has in his statement recorded u/s 342 Cr. P.C admitted his presence on the spot, althoughhe has explained that he fired out of fear and to save his life. The Investigating Officer Mohammad Latief, Sub Inspector, has stated that vide memo of seizure marked as EXPW16-2, all the articles were seized from the possession of the deceased and his associate namely Mohammad Yasin. P.C admitted his presence on the spot, althoughhe has explained that he fired out of fear and to save his life. The Investigating Officer Mohammad Latief, Sub Inspector, has stated that vide memo of seizure marked as EXPW16-2, all the articles were seized from the possession of the deceased and his associate namely Mohammad Yasin. Mohammad Shafi, FSL expert, has stated as under in his examination in chief: “On 19.05.2006 while posted as deputy director FSL Srinagar he received 04 sealed packets and 01 sealed envelope through HC Mushtaq Ahmad No. 56/KP forwarded by Addl. ASP Kupwara vide letter No. CS-ASP-2/254-56 dated 17.05.006. These were forwarded to finger print division for their necessary examination and three packets were received back in open condition. Packet marked A contained 01 AK/Rifle and one Magazine loaded with 18 live cartridges. The rifle was marked as mark B-374/06, Maganize as Mark B-375/06 and the live cartridges as Mark B-376/06 to 393/06. Packet B contained 01 AK/Rifle, one Magazine loaded with 30 live cartridges. This AK rifle was marked as B-394/06 and empty magazine as B-395/06 and 30 live cartridges as B-396/06 to B-425/06. Packet C contained one AK rifle and a magazine loaded with 30 live cartridges. The rifle was marked as B-426/06, empty magazine as Mark B-427/06, and 30 live cartridges as B-428/06 to B-457/06, Packet D contained 11 fired cartridges cases. These fired cartridges cases were marked as B-458/06 to B-468/06. After performing the test firings and other laboratory examinations. I came to the conclusion as under: 1. Three AK rifles marked as, B-374/06, B-394/06 and B-426/06 has been fired through. 2. Three AK rifles were found in normal working condition. 3. Eleven questioned fired cartridges cases marked as B-458/06 to B-468/06 had been fired through AK rifle marked as B-374/06. I submitted my report to ASP Kupwara on 6th of July 2006 vide report No. FSL/764-BAL/Sgr. Dated 06.07.2006. I have seen the report in the court file. It bears my signature and its contents are true and correct. It is marked as Expw FSL. I have also seen the copy of the letter forwarded to FSL by ASP Kupwara, it is marked as mark M-FSL. I have seen two AK rifles in the open court B-374/06 and B-394/06 marked as M/1-FSL and M/2-FSL respectively. It bears my signature and its contents are true and correct. It is marked as Expw FSL. I have also seen the copy of the letter forwarded to FSL by ASP Kupwara, it is marked as mark M-FSL. I have seen two AK rifles in the open court B-374/06 and B-394/06 marked as M/1-FSL and M/2-FSL respectively. I have also seen the eleven fired cartridges cases in the sealed condition bearing the seal of FSL. It is marked as M-3FSL, as per my opinion these 11 cartridges were fired through rifle marked as M/1-FSL. I have also seen three test fired cartridges marked as Nos. B-376 to B-378/06 fired through the rifle marked as M/1 FSL which have been marked as M-4FSL to M-6FSL.” 25. Taking into consideration the statement of the expert, three rifles were forwarded to him by the police authorities which were seized vide memo of seizure marked as EXPW16/1. Vide this memo of seizure one AK-56 rifle is stated to have been recovered from the possession of Bilal Ahmad Banday and the other two rifles, make AK-47, are said to have been seized from Naseer Ahmad Gagar and constable Zulfiqar Ayub. The FSL expert has stated that all the three rifles were found in normal condition. 26. The seizure memo marked as EXPW16-1 is stated to have been prepared in presence of Syed Ateeq and Constable Mushtaq Ahmad. It contains their signatures. In his examination in chief Syed Ateeq has stated that two days after the occurrence, a police man came to him. He obtained his signature on some paper, which he did not read and that the contents of the seizure memo vide which the arms and ammunitions are said to have been seized from the accused, are incorrect. His statement has not been tested on the strength of section 154 of the Evidence Act, and he too has not been declared to be hostile. Head constable Mushtaq Ahmad the other witness has stated that the arms and ammunitions were seized at the police post. Both these witnesses of the seizure have thus failed to support the prosecution case. Syed Ateeq Shah has in plain language stated that the seizure was not made in his presence. The other witness to the seizure, Mushtaq Ahmad has stated that the arms and ammunition were seized at the police post and not on the spot. Both these witnesses of the seizure have thus failed to support the prosecution case. Syed Ateeq Shah has in plain language stated that the seizure was not made in his presence. The other witness to the seizure, Mushtaq Ahmad has stated that the arms and ammunition were seized at the police post and not on the spot. Under these circumstance the memo of seizure gets shrouded in suspicion. It cannot be said which gun the accused was wielding at the time of the commission of the crime taking into consideration the fact that these were not seized at the spot. The memo of seizure therefore loses all its weight and significance. 27. The finger prints of the accused have been taken. They have been sent for chemical analysis. The report of the finger print expert is not on the file. He has not tendered his opinion. Mr. S. M. Shafi, Deputy Director FSL has been specific in saying that he did not give any opinion about the finger prints. Otherwise also it was and would have been an exercise in futility. The investigating officer ought to have taken the finger prints of the accused found on the gun, particularly in a case like the present one, where three rifles were fired through by three persons including the accused and there should have been an opinion of the expert that the shots that hit the deceased were fired from the gun wielded by the accused. The case lacks in these details. Doing so would have formed a chain that may have linked and connected the accused with the commission of the crime. The investigation has been conducted in a rough shod and cursory manner. The Investigating Officer appears to have done his job perfunctorily. If this situation prevails only God can save us from future miscarriage of justice. One shudders to think of a time when only the criminals will rule the roost and the law abiding citizens will be the victims or mute spectators. 28. In the impugned judgment, the trial Judge has stated that in answer to his statement recorded under section 342 Cr. P.C, the accused stated that he too had fired some shots out of fear and to save his life. The statement under section 342 Cr. P.C does not constitute evidence. It cannot be considered in isolation. 28. In the impugned judgment, the trial Judge has stated that in answer to his statement recorded under section 342 Cr. P.C, the accused stated that he too had fired some shots out of fear and to save his life. The statement under section 342 Cr. P.C does not constitute evidence. It cannot be considered in isolation. It has to be read in conjunction with the other evidence which does not state that the accused and the accused only committed the crime. It should constitute a link to complete the chain of circumstances as has been held in 2016 (15) SCC 572. Therefore, this contention cannot be accepted and has to be rejected. 29. Another glaring defect in the prosecution case is that an inalienable right of the accused to produce the evidence in defence, has been taken away by the trial court. The statement of the accused under section 342 Cr. P.C has been recorded twice as gets revealed from the file. When his statement was recorded for the first time the accused was asked to produce his evidence in defence. On the date when the evidence in defence had to be recorded, prosecution moved an application under section 540 Cr. P.C which was allowed. On the next date the statement of the witness sought to be examined by the prosecution was recorded and the case was posted for advancing arguments without giving the accused an opportunity to adduce evidence in defence. A statutory requirement as envisaged under section 274 Cr. P.C has been given a go by. Section 274 Cr. PC on the face of it, provides that when the accused is not acquitted under section 273 he shall be called upon to enter for his defence and adduce any evidence he may have in support. The trial of the case has been aborted half way resulting in miscarriage of law and justice. This cuts at the very root of the case. 30. The prosecution edifice collapses when tested on the touch stone of what has been stated above. The judgment of conviction and sentence recorded by the trial court, is against the canons of law, justice and the facts of the case. It cannot stand. The links of the appellant have not been connected with the commission of the crime. The mystery as to the identity of the accused has not been unearthed. The judgment of conviction and sentence recorded by the trial court, is against the canons of law, justice and the facts of the case. It cannot stand. The links of the appellant have not been connected with the commission of the crime. The mystery as to the identity of the accused has not been unearthed. The injured witness has knocked the bottom out of the prosecution case. The accused has been deprived of a valuable right of producing evidence in defence. The conclusions reached by the Learned Trial Court are based on surmises and conjectures. These have resulted in grave injustice. The trial court has taken two and half years to hear the arguments in the case. It has remained oblivious of the fact that the right to speedy trial is a fundamental right guaranteed to the accused. 31. Viewed thus, the appeal merits to be allowed and, accordingly, the same is allowed as a consequence of which the judgment of conviction and sentence is set-aside. The accused is acquitted of the charges leveled against him and he shall stand released from custody forthwith. The reference is also answered accordingly. The record of the case shall be sent back to the trial court.