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2017 DIGILAW 815 (JK)

State v. Manzoor Ahmed

2017-09-08

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2017
JUDGMENT : Sanjay Kumar Gupta, J. 1. State is aggrieved of the acquittal earned by Manzoor Ahmed S/o Mohd. Afzal R/o Gund Thathar, Tehsil Banihal, District Ramban ( for brevity ‘accused’) vide impugned judgment dated 10.12.2013 of learned Principal District & Sessions Judge, Ramban in case FIR No.39/2003 registered in Police Station Banihal for the offences under Section 364/302/450/201 RPC and 7/27 Arms Act, therefore, Cr. Acq. Appeal No.150/2014. 2. Prosecution case is that on 08.04.2003 at about 11 PM, it was revealed from reliable sources that during the intervening night of 7th/8th of April, 2003 some unidentified masked militants armed with illegal arms and ammunition trespassed into the house of Abdul Latief and in furtherance of common intention beat and kidnapped his wife. It also surfaced that the abducted person was taken about 1 KM away at Jamihal and was shot dead. On the receipt of this report, the police agency swung into action, registered FIR under Section 302/364 RPC and investigation started. During investigation, the militants could not be traced and case was closed untraced. However, subsequently re-investigation was ordered and the case was re-opened on the directions of SP Ramban on the basis of an application dated 02.04.2007 moved by husband of the deceased, Abdul Latief, who alleged that accused Manzoor Ahmed Khan alias Bilal was responsible for killing and kidnapping of innocent civilians. The accused, who was affiliated with banned outfit Hijbul Mujahidin, had killed deceased Manzoora Begum and tortured others. During re-investigation, the investigating agency besides legal formalities, also got statements of material witnesses recorded from the competent Court under Section 164-A Cr.P.C. and it revealed that accused Manzoor Ahmed an active militant belonged to banned militant group of Hijbul Mujahidin. During the intervening night of 7th/8th of April, 2003 he kidnapped deceased Manzoor Begum at gun point, took her 2 KM away and shot her dead on the spot. Subsequently, the militant-accused surrendered before 20 RR Banihal along with AK 47 Rifle. Accordingly, offences under Sections 364, 302, 201 RPC and 7/27 Arms Act were established against the accused and present report was filed. The accused was charge sheeted by the Court vide order dated 24.09.2008 for the commission of offences punishable under Sections 364/302/201 RPC and 7/27 Arms Act, to which he pleaded not guilty and claimed to be tried. Therefore, prosecution was directed to lead evidence. The accused was charge sheeted by the Court vide order dated 24.09.2008 for the commission of offences punishable under Sections 364/302/201 RPC and 7/27 Arms Act, to which he pleaded not guilty and claimed to be tried. Therefore, prosecution was directed to lead evidence. The prosecution has examined as many as 14 witnesses, a brief resume whereof is as under:- PW-1 Abdul Latief has deposed that the accused was a militant. Since the militants used to torture him, he was running a Tea-Stall at Lakhanpur. He returned home for 11/2 months in the year 2003 because his cousin brother had died. He returned to Lakhanpur and received a telephonic information on 07.04.2003 and he was asked to return home. He returned on 08.04.2003 and found his wife dead. His children told him that accused Manzoor Ahmed Khan, kidnapped and killed their mother. He was threatened by the militants not to initiate any proceeding for the death of his wife. Accused had also threatened to kill him. He went to the police station after 4 days. His brother had already informed the police. Police got the postmortem of the deceased conducted. On cross-examination by the defence counsel, he has stated that he was telephonically informed by his brother. He had gone to Pathankote when he received telephone call. Subsequently, his brother-in-law Abdul Latief, Qayoom Beigh came to Lakhanpur to call him. He could not meet them, but his brother-in-law informed his neighbourer to ask him to immediately return home. He was informed about the death of his wife at Lakhanpur. He was told by his children Parveena Bano, Naveena Bano and brother Abdul Rashid that accused murdered his wife. He reached home on 3rd day of the occurrence. The occurrence took place on 07.04.2003 and he returned home on 09.04.2003. His brother had made a report to the police station when his wife was killed. However, he had not named the accused, because they were under pressure by the militants. However, he repeatedly told about the accused to the police, but police advised him to take care of his family. He went to the Police Station after 5 days of the occurrence and mentioned name of the accused in his statement. However, he does not know whether the police wrote the name of the accused or not. When the accused surrendered before Army, he again made statement before the police. He went to the Police Station after 5 days of the occurrence and mentioned name of the accused in his statement. However, he does not know whether the police wrote the name of the accused or not. When the accused surrendered before Army, he again made statement before the police. When the accused was handed over to the police, he went to SHO Police Station Banihal and made the statement. The accused had killed his wife. Subsequently he made an application to the SP that his wife had been killed by the militant. He approached SP Ramban along with Abdul Majid Wani who was also kidnapped by the militants. SP Ramban directed the Dy. SP to conduct the proceedings. He alongwith Abdul Majid Wani appeared before Dy. SP Banihal on various occasions. When he reached home, his relatives including Abdul Qayoom Beigh, Nazir Ahmed Khan, Fateh Khan, Saif Ullah Khan, Saif Ullah Beigh, besides his children were present. His children were frightened and told him the name of accused and they did not disclose him in presence of the people. The police recorded the statement of his daughter and they had mentioned the name of the accused. The police came to the spot on the day of occurrence. He made an application to SP Ramban to re-open the case only after the accused was handed over to the police. He does not remember how many days after making the application, his statement was recorded by the Dy. SP. His house is comprised of 3 rooms having windows in all the rooms and there is thoroughfare in-front of his house. He was told by his children that the accused had put on a mask, however, it slipped down while riding up to the verandah. Police never got identification parade of the accused. He did not know the accused prior to the occurrence. However, his children knew the accused because he would them come to their village. He was told by his children that the accused along with militants used to come to their village and they used to come without mask. Only his family was present in the house on the day of occurrence. House of his brother is situated at the distance of 55 ft away from his house and the houses of some of his brothers are situated at the distance some Zareeb. Only his family was present in the house on the day of occurrence. House of his brother is situated at the distance of 55 ft away from his house and the houses of some of his brothers are situated at the distance some Zareeb. Both of his brothers came to the spot of occurrence. His children had seen only the accused kidnapping and shooting down his wife. The deceased sustained injuries in her head. He has denied the suggestion that he tried to enter into compromise with the accused or demanding any amount. The accused had said that he was instructed by the Commander to kill his wife. The police never enquired from the accused in his presence. PW-2 Abdul Majid had deposed that on 08.04.2003 he returned home from Jammu. At about 8 PM accused along with two others entered into his house. Accused was armed with a gun and a pistol. He was kidnapped by the accused at gun point. He met other militants after a while. Accused and the militants took him to Mouhu Mangat Forest. The accused and the militants took him to a pasture on the next day where he was made to put of the clothes and the accused tortured him. Accused told him that yesterday he had killed Manzoora Begum and today he would kill him. Further he told that he handed over the dead body of Manzoor Begum but would not hand over his dead body to his family. He was instructed by the District Commander to shoot him. Accused put his gun on his shoulder. Subsequently, a couple of militants came there, snatched gun from the accused and left in the pasture. The gun wielded person told the accused that he had killed innocent Manzoora Begum and today he would kill another innocent. Manzoora Begum is wife of Abdul Latief. Accused took in writing from him in his diary that should he name the accused before any agency or police, they would kill his family. Thereafter accused and the militants went away. He was brought back to his house by the family from Mauhu Mangat Forest on 3rd day. Thereafter accused used to sent him threatening letters and he could produce same in the court. Subsequently, accused confessed that he had killed Manzoora Begum and kidnapped and he did so on the instructions of some body. He was brought back to his house by the family from Mauhu Mangat Forest on 3rd day. Thereafter accused used to sent him threatening letters and he could produce same in the court. Subsequently, accused confessed that he had killed Manzoora Begum and kidnapped and he did so on the instructions of some body. Accused made confession in presence of Ghulam Hassan, Bashir Ahmed Khan and Shamas Din Ganai. He and Abdul Latief made an application before SP Ramban. He admitted the same identified his signatures and it is marked as EXT-P2. Abdul Latief has also put his signatures on the aforesaid application. He made repeated statements before the police and he also made statement in the Banihal Court. He Knew Baber, out of the militants who were alongwith accused. He got treatment from the Ramban Hospital. On cross examination by defence counsel, he has stated that on his return, he told the police that Manzoora Begum had been killed by the militants. He made the statement to Dy. SP Jaswant Singh Katoch. He was asked by the then SHO Banihal and Dy. SP operation Sharma that why he was left alive by the militants. He did not make written application and made oral report to the police station. He did not make any written application to the police station, Banihal along with Abdul Latief. He did not meet Abdul Latief when the returned home on 11.04.2003. Abdul Latief met 4/5 months after the occurrence, because those days he was putting up at Ramban. Abdul Latief knew before meeting him that his wife had been killed by the accused. He told Abdul Latief that the accused kidnapped him and he had confessed that he killed his wife and nobody else was present at that time. He and Abdul Latief repeatedly told the police that the accused was the culprit but police did not conduct any proceedings. His statement was recorded before Banihal police also. He also made an application to Director General of Police. Subsequently, he made an application for re-investigation to SP Ramban and case was re-opened. Accused told him the name of the upper ground workers, those included Ahad Ullah Tantray R/O Naugam, Gulam Rasool Mater R/O Asad, Gulzar Ahmed Parray, Mohd Ismail, Beigh, and Gulam Mohd. Rather R/O Asad. He was also threatened by the aforesaid workers. SP Ramban did not write anything on his application EXT-P2. Accused told him the name of the upper ground workers, those included Ahad Ullah Tantray R/O Naugam, Gulam Rasool Mater R/O Asad, Gulzar Ahmed Parray, Mohd Ismail, Beigh, and Gulam Mohd. Rather R/O Asad. He was also threatened by the aforesaid workers. SP Ramban did not write anything on his application EXT-P2. However, he directed for re-investigation of the case. After application EXT-P2 he was again called by the police for investigating. Bilal has written on the letter produced by him and Shafiq-Ul Ishrar has been written on the other letter. He had given copies of the letters to the police, which he received by post. He has never gone to the house of the Abdul Latief. PW - Rubina Bano has deposed that on 07.04.2003 at about 9 PM, while her mother came out after offering prayers, some unidentified persons came over there and kidnapped her mother. Her mother raised hue and cry, she and her brother came out and ran after calling their mother. She heard a gunshot and she and her brother fell unconscious. Their uncle took them to the house. Next day the dead body of her mother was recovered from a distance of 1 km. The dead body was shifted to the hospital. The postmortem was conducted. Since it was dark at the time of occurrence, she could not recognize the said person. Her statement was recorded in the Banihal Court but she made said statement on the instructions of the police. On cross examination by the defence counsel, she has stated that she does not know that how did her mother died. She, mother and her brother were in their house on the day of occurrence and she did not see anybody else. The statement she made in the Banihal Court was not read over to her, as the statement was made by the police itself. She has no knowledge about the occurrence. Her father was at Lakhanpur and he was informed by her uncle. PW- Parveen Bano has deposed that deceased was her mother. On 7th of April 2003 at about quarter to 8 PM, her mother offered Nawaz and thereafter she went into a room. When her mother came in the verandah, the accused was coming up. The accused put a piece of cloth to shut the mouth of her mother and caught hold of her arms. On 7th of April 2003 at about quarter to 8 PM, her mother offered Nawaz and thereafter she went into a room. When her mother came in the verandah, the accused was coming up. The accused put a piece of cloth to shut the mouth of her mother and caught hold of her arms. The accused was having a pistol in his hand and was armed with a gun on his shoulder. She has identified the gun in the open court. The accused caught hold of their mother from hair and kidnapped her mother. She, her brother and rest of the villagers, chased the accused upto turn of the road. The accused fired a shot from his pistol at her mother, while she was witnessing from the uphill. She heard the pistol shot and fell unconscious. Thereafter she was brought home by the villagers and they spent the night in the house of their uncle Abdul Rashid. Next day police came to the spot at about 1 PM. The police took photographs of the place of occurrence and also seized an empty catridge from the spot. The postmortem was conducted in the Banihal Hospital and the dead body was handed over to them, which was buried after last rites. Her father was not present in the house, as he used to run Tea-Stall at Lakhanpur. The accused was militant and killed her mother. On cross examination by defence counsel, she has stated that there was militancy in Banihal in 2003. The militants from different outfits used to come to their village. The people used to see militant coming in and going from the village. Her mother offered nawaz at half past 7 PM and there was light. The Mosque is situated at a distance of 100 feet from their house. Her uncle and others were also offering prayer in the Mosque. Her mother and the persons in the Mosque had finished their Nawaz. Faiz Ahmed Khan, Abdul Rashid Khan, Nazir Ahmed Khan and Sharief Ahmed Khan were along when her mother was kidnapped. Lot of people assembled on the spot, but she was unconscious. She fell unconscious on the road. She does not know whether anybody else fell unconscious or not. There is a road in front of her house. The village is comprised of about 30/40 houses. All of them came to the spot on hearing shot. Lot of people assembled on the spot, but she was unconscious. She fell unconscious on the road. She does not know whether anybody else fell unconscious or not. There is a road in front of her house. The village is comprised of about 30/40 houses. All of them came to the spot on hearing shot. She raised hue and cry at the time her mother was kidnapped. She chased the accused but she cannot say how many persons came along. The occurrence was witnessed by her brother and her sister besides her. She has denied the suggestion that she did not see the accused firing and gun shot. She had narrated the incident to her father and the police and she narrated the incident to the police 5/6 days after the occurrence and she also told the name of the accused to the police. She made her statement before Munsiff Banihal. She did not disclose the name of accused because she was afraid of the accused, who was a militant and could kill her. Her house is comprised of three rooms but she alongwith her mother and other members of the family slept in one room only. She has denied the suggestion that her mother demanded money from the accused and therefore, the accused was named 5 years after. When accused surrendered after 5 years, they opened up and they were frightened before that. She did not make any report to the police station with respect to the threats because their father used to be in the house and their father had said that he would take revenge with the accused. Her father returned home on the 9th day after he was telephonically informed by their uncle Bashir Ahmed. They disclosed the occurrence to her father and uncle. Their father and uncle disclosed the name of the accused to the police after the accused surrendered. The police recorded her statement 5/6 days after the occurrence and thereafter police never recorded her statement. Four persons who came alongwith her had not seen the accused. Accused was at a distance of 2/3 feet carrying her mother. The persons who accompanied her had also seen the accused and they had brought her back. The police recorded her statement 5/6 days after the occurrence and thereafter police never recorded her statement. Four persons who came alongwith her had not seen the accused. Accused was at a distance of 2/3 feet carrying her mother. The persons who accompanied her had also seen the accused and they had brought her back. Houses of Rehmant Ullah, Mohi Din Khan, Reyaz Ahmed Khan and Abdul Qadir would come on the way to the road and they also came out from their house whenever there used to be firing in their village. No body from their village was militant during those days but one militant was present in the village, who had been killed prior to the occurrence. Son of Mohd Afzal Dar was a militant and he did not use to come to their house. They heard the gun shot 5/10 minutes after her mother was kidnapped by the accused and the mother was shot at a distance of 1 KM. It takes 10 minutes from her house to the place of occurrence and the place of occurrence was a down hill from her house. It was not complete dark when she heard the gun shot and it was quarter to 8 PM. The said spot was visible. The persons who accompanied her were coming behind because of fright. The accused surrendered before the police in the year 2006 and this was told by her father. The police restarted the proceedings after the accused surrendered. PW - Altaf Hussain has deposed that on 07.04.2003 two militants came to their house at about 7:45 PM and kidnapped his mother. He had not recognized the accused on that day. His uncle and his sisters made statements to the police and he had not made any statement to the police. He was 15 years of age and his statement was not recorded by the police. Police came to him in 2007 and enquired him. He had not mentioned the name of the accused. He has been declared hostile and on cross examination by the Ld. P.P. he has denied that accused entered into his house, tied the eyes of his mother with a dupata and took her along. He could not recognize the militant because it was dark. He has denied that the accused was having a pistol in his hand and gun on his shoulder. P.P. he has denied that accused entered into his house, tied the eyes of his mother with a dupata and took her along. He could not recognize the militant because it was dark. He has denied that the accused was having a pistol in his hand and gun on his shoulder. He has 3 sisters namely Parveen Akhter, Rubia and Ishrat Bano. He and Rubina were sitting in one room, whereas Parveena Akhtar his elder sister was sitting in other room. He and their neighbours raised hue and cry at the time of occurrence and neighbours had also assembled on spot. They also chased the militants but it was dark. He has denied the suggestion that there was light, because the occurrence tookplace at 7:45 PM. He and his uncle chased the militants upto turn but the militants were not traceable when militants opened the fire he fell unconscious. His father was not present in the house at the time of occurrence, who used to run tea stall at Lakhanpur. He has denied his statement u/s 161 Cr.P.C police did not seize any rifle from the accused in his presence. He has denied the seizure memo of rifle and other ammunition. On cross examination by defence counsel, he has stated that he and his sister could not recognize the militants, when their mother was kidnapped by the militants. When their father return from Lakhanpur he and his sister told him only that two militants had kidnapped their mother and militant could not be identified. His uncle Abdul Rashid was also present in their case house when his father returned home. The accused was not amongst the militants who came to their house. PW - Fayaz Ahmed has reflected his ignorance about the occurrence. He does not know how the deceased died, because he was not present at that time in the house. He has been declared hostile and on cross examination by the prosecution, he stated that he had also gone in search of the deceased. Police did not enquire from him. He did not hear any fire. On cross examination by defence counsel, he has stated that he did not see daughter of the deceased Parveena on the spot. PW Abdul Hamid has reflected his ignorance about the occurrence and has stated that nothing was seized in his presence. Police did not enquire from him. He did not hear any fire. On cross examination by defence counsel, he has stated that he did not see daughter of the deceased Parveena on the spot. PW Abdul Hamid has reflected his ignorance about the occurrence and has stated that nothing was seized in his presence. Having been declared hostile, on cross examination, he has stated that he does not know that militant killed Manzoora Begum in April 2003. His statement was not recorded by the police. The police obtained his signatures on the pretext that dead body of Manzoora Begum had to be handed over to his family. Contents of the documents were not read over to him. He has denied his signatures on the receipt of dead body and also on the seizure empties. The police did not seize empties or bullets in his presence. On cross examination, he has stated that he has no knowledge about the occurrence. PW – Bashir Ahmed has stated that on 3rd of April 2007 he was present in his house. Fayaz Ahmed came to him on the second day of the occurrence and told him that wife of his brother was kidnapped by some body the previous night. He went to the spot. When he was on the road, he was asked by the villagers to search Manzoora Begum and thereafter all of them went to search Manzoora Begum. They met a woman with a bucket of cow-dung on her head and she told him that a woman was lying dead in a drain. He went to the spot alongwith 7/8 persons. Thereafter they shifted dead body to the hospital where the postmortem was conducted. Husband of the deceased had been working at Lakhanpur during those days and he returned home 4 days after the occurrence. He has admitted the custody memo EXT-P-8 of the dead body and receipt of the dead body EXT-P-8. On cross examination by defence counsel, he has stated that he lodged oral report to the police station Banihal which was entered in the roznamacha. Police came to the spot on the day he made the report. He does not know that police obtained his signatures on how many papers. He had informed his brother Abdul Latief. He cannot say that Parveena the daughter of the deceased was present on the spot or not. Police came to the spot on the day he made the report. He does not know that police obtained his signatures on how many papers. He had informed his brother Abdul Latief. He cannot say that Parveena the daughter of the deceased was present on the spot or not. PW–Abdul Rashid has stated that on 07.04.2003 at about 7:45 PM, Parveen came running to his house and told him that the militant kidnapped his mother and they were locked inside the room. He went to her house where children were crying. The sister of Rubina was unconscious. He and neighbourers searched for about two hours but they did not meet any body. On next day on 08.04.2003 his brother Bashir Ahmed found dead body of Manzoora Begum. They went to Police Station and lodged FIR. Police shifted the dead body to the hospital where the postmortem was conducted. He has admitted the seizure memo EXT-P9 of the clothes of the deceased and he also identified the clothes in the court. On cross examination, he has stated that till PW Rubina came crying to his house no body knew as to what had happened. PW - Nazir Ahmed has stated that in April 2003 at about 7:30 PM they heard hue and cry. People rushed to the spot. He enquired from the children who told him that their mother was kidnapped by about 7/8 persons. Next day they heard that dead body of Manzoora Begum was lying in a drain. His statement was not recorded by the police. He has admitted seizure memo EXT- P9 of the clothes of the deceased and identified the clothes in the court. On cross examination by defence counsel, he has stated that seizure memo was written at the time of he signed it and police obtained is signatures on a blank paper. PW - Trilok Nath Head Constable has stated that on 23.11.2006 Police Station Banihal deposited arms seized from the surrendered militant Manzoor Ahmed in the armoury vide seizure memo EXT-P16, at Ramban Armoury, as he as incharge. Subsequently the investigating officer, vide entry 354 dated 31.05.2008 obtained one rifle, 3 magazines, 90 rounds. He has seen and identified arms and ammunition in the open court. On cross examination, he has stated he does not know that where police station Banihal had brought the arms and ammunition from. Subsequently the investigating officer, vide entry 354 dated 31.05.2008 obtained one rifle, 3 magazines, 90 rounds. He has seen and identified arms and ammunition in the open court. On cross examination, he has stated he does not know that where police station Banihal had brought the arms and ammunition from. His statement was not recorded by the I.O. PW - Ramesh Kumar has stated that on 31.05.2008 he was posted at District Police Line Ramban. Dy. SP had seized one rifle, one AK 47, magazine, a pouch and 90 rounds in his presence. He has denied the seizure memo with respect to the same. No question has been asked in cross examination. PW - Mohd Iqbal has deposed that he conducted preliminary investigation in FIR No.39/2003. During investigation he prepared site map and he admitted the site map EXT-P14. He has also admitted site map EXT-P14/A with respect to recovery of dead body. He has also admitted the custody memo EXT-P8 of the dead body and receipt of the dead body EXT-P8/A. Seizure memo EXT-P14/B of empties and he has admitted the seizure memo EXT-P9 of the clothes. He got postmortem of the deceased conducted. He recorded statements of the prosecution witnesses i.e. two daughters of deceased, two brother-in-laws, husband of the deceased and sort of the deceased. He has identified the seized articles in the court. On cross examination by defence counsel, he stated that as per his investigation it was told by every body, that the deceased was kidnapped by unidentified armed persons. Husband and children of the deceased also did not recognize any person. He seized the empties from near the dead body. Place of recovery of the dead body was not visible from the house of the deceased. PW - Parbat Singh Dy. SP has deposed that FIR no.39/2003 was closed but subsequently re-opened in the year 2007. He investigated the case and recorded the statements of the witnesses u/s 161 Cr.P.C. He recorded the statement of husband and daughters of the deceased. Thereafter they searched the accused but he could not be traced. He was transferred from Banihal in October 2007. According to his investigation and statements of the witnesses offences u/s 364/302 RPC and 7/27 Arms Act were established against the accused. On cross examination, he has stated that accused was not traced since the investigation was re-opened till October 2007. Thereafter they searched the accused but he could not be traced. He was transferred from Banihal in October 2007. According to his investigation and statements of the witnesses offences u/s 364/302 RPC and 7/27 Arms Act were established against the accused. On cross examination, he has stated that accused was not traced since the investigation was re-opened till October 2007. He perused the application on the basis of which he commenced investigation. He has admitted that as per the application EXT-P-2, the accused had been shown as surrendered militant. He was directed by the then SP for investigation and the accused was mentioned a surrendered militant in the said order No.363537/CB dated 02.04.2007. It was established in his investigation that the accused was a surrendered militant. It is not mentioned in the case diary that whether the accused during those days was under custody or not. Missing report with respect to accused was lodged in Police Station Banihal on 18.04.2003, but he did not investigate in this regard. The accused was serving in the department of Social Forestry till 12.04.2003 and he was present on duty till 12.04.2003, but absconded thereafter. He did not investigate in this regard. He investigated the case till 28th of September 2007 when the accused was yet to be arrested, however, offences were established against him. None of the witnesses during his investigation deposed that they mentioned name of the accused during earlier investigation, and police did not record his name. However, they had stated that they did not mention the name of the accused due to militancy. PW-Alaf Din Katoch has stated that in May 2008 investigation of the present case was assigned to him. During investigation, he recorded the statements of some of the witnesses u/s 161 Cr.P.C. and got statements of some witnesses recorded from the Court u/s 164-A Cr.P.C., the articles, those were seized by the Army were kept in the armoury which included one AK 47 rifle, 3 magazines of AK 47, 90 rounds of AK 47 and one pouch and these articles were seized in presence of witnesses. He prepared seizure memo and kept the seized material under the custody of police station, Banihal. He has identified the seized items in the open court. He has admitted the seizure memo EXT-P/I with respect to report of Roznamacha and seizure of the ammunition. He prepared seizure memo and kept the seized material under the custody of police station, Banihal. He has identified the seized items in the open court. He has admitted the seizure memo EXT-P/I with respect to report of Roznamacha and seizure of the ammunition. He has admitted the seizure memos with respect of personal search, receipt, property and identification of the accused respectively marked as EXT-P16/II, EXT-P16/III, EXT-P16/VI and EXT-P16/V. During investigation it came to the light that on the day of occurrence the accused accompanied by another two militants kidnapped Manzoora Begum W/o Abdul Latief from her house at night, took her two miles away and shot her dead and thereafter they fled away. The accused had not produced pistol during investigation. Offences u/s 302/201/364 RPC and 7/25 Arms Act were proved against the accused. The other two militants who accompanied the accused had been killed in an encounter. On cross examination, he has stated that the FIR in the present case was lodged in the year 2003 vide No.39 of Police Station Banihal. The statements of the witnesses were recorded during investigation of the FIR No.39/2003. He did not annex the statements of the said witnesses in the present case. The case was closed untraced on 28.06.2003. The investigation was assigned to him on the basis of an application in May, 2008. He seized arms from the custody of incharge Armoury Ramban. He does not know from where the adjutant had brought weapons. He had not forwarded some of the empties to the FSL. He did not cite any army personnel as witness in the case. He did not put any seal or mark. PW-Mohd Ayub Khan DFO has stated that on 11.05.2013, he was posted as DFO Social Forestry, Ramban. As per record accused Manzoor Ahmed was neither posted in the forest department nor he was daily wager in the year 2003. The accused has never served in the department. He has admitted the certificate EXT-P-MA. On cross examination by defence counsel, he has stated that he issued aforesaid certificate on the application of PP. PP did not forward any document to him with this application. He has admitted that he has issued the certificate EXT-P-MA on the basis of report of the Range Officer, not on the basis of record. However, he had perused the record in the year 2003. PP did not forward any document to him with this application. He has admitted that he has issued the certificate EXT-P-MA on the basis of report of the Range Officer, not on the basis of record. However, he had perused the record in the year 2003. The months or year 2003 was not mentioned in the application of PP. He did not peruse the record with effect from 2000 to 2002. Therefore he could not say whether the accused was posted in the Social Forestry Department during said period or not. He used to draw salary or not. The record of daily wager with effect from 2000 to March, 2003 is lying in the department, however, the record of casual labour is not lying in the department. However, master roll of the casual labour is there in the department. He had asked the Range Officer that whether the accused was permanent employee and enquired about his being a casual labour. He had not enquired whether the accused was employed as a casual labour in his department in the year 2000. On cross examination by the court, he admitted that he has not mentioned in the certificate EXT-P-MA that he personally perused the record. On cross examination by defense counsel, he has stated that there is no mention of the master roll in the record mentioned by him. This is all the prosecution case. Statement of the accused u/s 342 Cr.P.C was reduced into writing, whereby he denied the incriminating evidence against him and entered defense. A brief resume of the defense evidence is given below. DW - Abdul Gani (retd. Forest officer Social Forestry) has deposed that the accused had been working as a daily wager in the department of Social Forestry with effect from 2001 to 12.04.2003. Father of the accused lodged complaint to officer of the department of Social Forestry that the accused was not being paid the wages. On the said basis he was directed to submit a report with respect to the wages of the accused to higher officers. He submitted a reply to the officers that the accused had been paid wages w.e.f. 10.10.2000 to 12.04.2003 and he submitted written report to his Senior Officers in this respect. He has identified the report under his hand writing and signatures annexed with the file. The accused was present on duty during the said period. He submitted a reply to the officers that the accused had been paid wages w.e.f. 10.10.2000 to 12.04.2003 and he submitted written report to his Senior Officers in this respect. He has identified the report under his hand writing and signatures annexed with the file. The accused was present on duty during the said period. On cross examination, he has stated that he used to mark attendance of the accused. He has not brought the attendance record along with him. He used to submit the attendance record to office of the DFO every month. The accused did not disappear during the period. He was on duty. The accused was posted at Thathar nursery. He prepared the report as per direction of the Range Officer. Original copy of the letter is lying in the Office of DFO, he could not produce the same. DW - Tariq Afzal has stated that Manzoora Begum was killed on 7th of April 2003. On the day of occurrence accused was employed in the forest department and he had no link with the militants. PW Abdul Majid Wani was employed in the department of Food and Supply, who had misappropriated the ration and distributed money to the militants and he was suspended. He impressed upon the accused to join militant outfit but accused denied. On 15.04.2003 accused left for Delhi. However, when he did not reach Delhi a missing report of the accused was lodged on 18.04.2003 with Police Station Banihal. About one month after they came to know that the accused had been kidnapped by the militants. After some time accused informed them that when ever he would get an opportunity he would surrender. The accused got himself rid of the militants and surrendered in the year 2006, thereafter accused remained under the custody of 17 RR for 3 months. Subsequently, he was released and he returned home. He opened a shop. PW Abdul Majid was annoyed with the accused because in his opinion the outfit suffered set back and it also affected militant activities. He had threatened the accused to implicate him in some case and he instigated Abdul Latief Khan to file a false case against the accused and therefore, the accused was implicated in a false case. On cross examination by PP, he has stated that the accused is his real brother. He had threatened the accused to implicate him in some case and he instigated Abdul Latief Khan to file a false case against the accused and therefore, the accused was implicated in a false case. On cross examination by PP, he has stated that the accused is his real brother. His father and brothers had gone to the police at the time of accused surrendered. Accused was on his duty on the day Manzoora Begum was killed and he was posted at Thathar Nursery. They obtained attendance report of the accused from the forest department and produced it before the police and in the court. He has denied the suggestion that the accused was missing for one month prior to the day when his missing report was lodged. The accused was arrested by the police before the occurrence and he remained militant for 3 months. Accused Manzoor Ahmed as Defence Witness has stated that in the year 2003, he had a quarrel with PW-2 Abdul Majid, who was posted as a Store Keeper in the department of Food and Supply. He used to supply ration to the militants outfit due to which all the consumers including him were annoyed with him and there used to be quarrels with him. PW-2 Abdul Majid was suspended from the service on the complaint of the consumers. Therefore he had threatened him. On 15.04.2003 he was performing his duty at Thathar Nursery of the department of Social Forestry. Some militants came to his nursery and asked him to show the way, however, they kidnapped him to Mahumangat at gun point. He beseeched before the militants, however, they said that since his father was worker of National Conference, one of his brother was serving in STF and another in the army, therefore, he could not be let off. The militants kept him along with them for 3 years and threatened that should he ever leave their company, his entire family could be killed. He remained with militants but did not commit any militant activity. The moment he got an opportunity he returned home and surrendered before the army. Subsequently, he was handed over to the police. He remained under police custody for 6 months and thereafter he was released. However, he used to appear before the police and in the army camp. He started a shop in the village. The moment he got an opportunity he returned home and surrendered before the army. Subsequently, he was handed over to the police. He remained under police custody for 6 months and thereafter he was released. However, he used to appear before the police and in the army camp. He started a shop in the village. In the year 2007 PW Abdul Majid came to him and said that he caused set back to the outfit. He demanded money from him and his family else he was threatened to be put behind the bars. One day he was caught hold by PW-1 and PW-2 in the bazar and they said that he had received half a bag of rupees and they asked him to pay the money, which he denied. After some days he was arrested. On cross examination by PP, he has denied that he absconded in February 2003. He used to get monthly salary of Rs.930/-. Consumers from different villages had complained against PW-2 that he had not been fairly distributing the ration amongst the consumers. PW-2 threatened him at Banihal ration store. He had made an oral report that PW-2 was giving lessor quantity of ration to the consumers and distributing ration to the militants. He does not know whether any proceedings were initiated or not but he was suspended from the service. He does not know when he was reinstated. He was kidnapped by the militants namely Nasir Khan, Babar, Shahid Tantray and others, however, he was not used to be taken along during militants activities. His attendance for 3 years has been made before the officer in the office of DFO Social Forest Ramban. He used to put signatures at the time of getting salary. DW – Mohd Muzaffar Jhon Dy. SP has deposed that he has produced report No.8 of Roznamacha dated 18.04.2003. As per this report Mohd Afzal Khan S/o Ahad Khan R/o Gund Thathar Banihal has made a missing report with respect to his Son Manzoor Ahmed that his son went to Delhi one year and 2 months ago and did not return. As per report Manzoor Ahmed had told his mother that after Delhi he would go to Mumbai, but he did not return. On cross examination by PP he has stated that according to the report accused Manzoor Ahmed was missing for 1 year and two months i.e. since 18.04.2003. As per report Manzoor Ahmed had told his mother that after Delhi he would go to Mumbai, but he did not return. On cross examination by PP he has stated that according to the report accused Manzoor Ahmed was missing for 1 year and two months i.e. since 18.04.2003. This is all about the defence evidence. 3. Court below after hearing the prosecution and accused, dismissed the challan on the grounds that there are hearsay witnesses; that material witnesses have been turned hostile; victim in the case has given altogether a different story. 4. We have given our thoughtful consideration to whole aspects of the matter and gone through law on the subject. 5. In criminal trial, the burden always lies on prosecution to establish the case against the accused and the accused persons are presumed to be innocent of the offense charged till the contrary is established. The presumption of innocence always applies to accused. The prosecution has to discharge its onus of proving the case against the accused beyond all reasonable doubts, which is cardinal principle of criminal jurisprudence. In determining the guilt of person charged with crime, onus of proving everything essential to the established of the charge against the accused persons lies on the prosecution. The evidence must be such as to exclude moral certainty, every reasonable doubt of the guilt of the accused. In the matter of doubt, it is safer to acquit the accused, because it is better that several guilty person should escape than that one innocent person suffer. If there be any gap or lacuna in the prosecution evidence, the accused and not the prosecution, would be entitled to get the benefit of doubt. It is the duty of the prosecution to ensure all diligence and carefulness required to see that all are brought on record and that prosecution does not fail to such neglect. The weakness in defense established by the accused persons is no help to prosecution, because the prosecution has to prove its case beyond all shadow of doubt. Mere creation of suspicion is not enough. There is inevitably long distance to travel between ‘may be true’ and ‘must be true’. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. More the heinous offense, stricter proofs are required. Mere creation of suspicion is not enough. There is inevitably long distance to travel between ‘may be true’ and ‘must be true’. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. More the heinous offense, stricter proofs are required. The fact in issue can be established by direct evidence or by indirect evidence. 6. Further the scope of power of appellate court in case of acquittal has been highlighted by Apex Court in case titled ‘Muralidhar alias Gidda & anr. v State of Karnatka’ [Criminal Appeal No.551 with 791 and 1081 of 2011, D/- 9-4-2014] reported in AIR 2014 SC 2200 , which read as under :- “10. Lord Russell in Sheo Swarup[1], highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years. 11. As early as in 1952, this Court in Surajpal Singh[2] while dealing with the powers of the High Court in an appeal against acquittal under Section 417 of the Criminal Procedure Code observed, "............the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." 12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu[3], Madan Mohan Singh[4], Atley[5], Aher Raja Khima[6], Balbir Singh[7], M.G. Agarwal[8], Noor Khan[9], Khedu Mohton[10], Shivaji Sahabrao Bobade[11], Lekha Yadav[12], Khem Karan[13], Bishan Singh[14], Umedbhai Jadavbhai[15], K. Gopal Reddy[16], Tota Singh[17], Ram Kumar[18], Madan Lal[19], Sambasivan[20], Bhagwan Singh[21], Harijana Thirupala[22], C. Antony[23], K. Gopalakrishna[24], Sanjay Thakran[25] and Chandrappa[26]. It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court. In ‘Ghurey Lal v State of U.P.’ (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with we have observed above.” 7. In ‘Ghurey Lal v State of U.P.’ (2008) 10 SCC 450 , the Court has culled out the principles relating to the appeals from a judgment of acquittal which are in line with we have observed above.” 7. In present case, initially FIR no.39/2003 for the offences under Section 364/302/450/201 RPC and 7/27 Arms Act was registered on the facts that on 08.04.2003 at about 11 PM, it was revealed from reliable sources that during the intervening night of 7th/8th of April, 2003 some unidentified masked militants armed with illegal arms and ammunition trespassed into the house of Abdul Latief and in furtherance of common intention beat and kidnapped his wife Manzoora Begum and she was taken about 1 KM away and was killed by fire. During investigation, the militant could not be traced and case was closed untraced. Subsequently, re-investigation was ordered on an application dated 02.04.2007 moved by husband of the deceased and during re-investigation it was found that on 08.04.2003 at about 11 PM, it was found that it was accused who during the intervening night of 7th/8th of April, 2003 armed with prohibited arms trespassed into the house of Abdul Latief and in furtherance of criminal intention beat and kidnapped Manzoora Begum who was taken about 1 KM away and was killed. It all was surfaced when new I/O during investigation got recorded statements of material witnesses from the competent Court under Section 164-A Cr.P.C. It was also found that accused Manzoor Ahmed was an active militant belonged to banned militant group of Hijbul Mujahidin and subsequently, militant-accused surrendered before 20 RR Banihal along with AK 47 Rifle. 8. Prosecution has based its case on PWs Mst. Rubina, Parveen Bano, daughters of deceased, Altaf Hussain son of deceased, Fayaz Ahmed and Abdul Hamid as eye witnesses. Rest witnesses are witnesses to various circumstances including some official witnesses. PW Abdul Latief and Abdul Majid Wani are persons, who lodged complaint for re-investigation of case. 9. There are certain dates, which are necessary for deciding the matter. Rubina, Parveen Bano, daughters of deceased, Altaf Hussain son of deceased, Fayaz Ahmed and Abdul Hamid as eye witnesses. Rest witnesses are witnesses to various circumstances including some official witnesses. PW Abdul Latief and Abdul Majid Wani are persons, who lodged complaint for re-investigation of case. 9. There are certain dates, which are necessary for deciding the matter. FIR u/s under Section 302/364 RPC & 7/25 Arms Act in the case was lodged on 8.4.2003 at 11.PM in Police Station Banihal, on the basis of information received from reliable sources that during the intervening night of 7th/8th of April, 2003 some unidentified masked militants armed with illegal arms and ammunition trespassed into the house of Abdul Latief and in furtherance of common intention beat and kidnapped his wife and she was taken about 1 KM away at Jamihal and was shot dead. The investigation started and statements of villagers were recorded and I/O could not find any clue so matter was closed. Thereafter on 02.04.2007 after more than 4 years of occurrence, PW Abdul Latief and Abdul Majid Wani lodged a written complaint before SSP Ramban for re-opening of this case and stated in complaint that it is the accused who has committed murder of his wife Manzoora Begum after kidnapping her. On this application/complaint the case was re-opened and investigation was given to Dy.SP Parbhat Singh. The I/O took the documents of the case, got recorded the statements of witnesses PWs Mst. Rubina, Mst. Parveen, Altaf Hussain and Abdul Majid Wani u/s 164-A Cr.P.C. on 14.5.2008 and statements of other witnesses u/s 161 Cr.P.C. were recorded and found case under section 364/302/201RPC & 7/25 Arms Act proved against the accused. 10. Firstly we will re-appreciate the evidence of eye witnesses. Bare perusal of statement of PW - Rubina Bano, it is evident that she has deposed that she does not know accused; on 07.04.2003 at about 9 PM, while her mother came out after offering prayer, some unidentified persons came over there and kidnapped her mother. Her mother raised hue and cry, she and her brother came out and ran after calling their mother. She heard a gunshot and she and her brother fell unconscious. Their uncle took them to the house. Next day the dead body of her mother was recovered from a distance of 1 km. Her mother raised hue and cry, she and her brother came out and ran after calling their mother. She heard a gunshot and she and her brother fell unconscious. Their uncle took them to the house. Next day the dead body of her mother was recovered from a distance of 1 km. Since it was dark at the time of occurrence, she could not recognize the said person. She gave statement in court on the instance of police. This witness has not been declared hostile. She has belied prosecution case. Her statement u/s 164-A Cr.P.C. has been recorded on 14.5.2008 after more than 5 years of occurrence and more than 1 year from the date of re-investigation. PW- Parveen Bano has deposed that deceased was her mother. On 7th of April 2003 at about quarter to 8 PM, her mother offered Namaz and thereafter she went into a room. When her mother came in the verandah, the accused was coming up. The accused put a piece of cloth to shut the mouth of her mother and caught hold of her arms. The accused was having a pistol in his hand and was armed with a gun on his shoulder. She has identified the gun in the open court. The accused caught hold of their mother from hair and kidnapped her mother. She, her brother and rest of the villagers, chased the accused up to turn of the road. The accused fired a shot from his pistol at her mother, while she was witnessing from the uphill. She heard the pistol shot and fell unconscious. Thereafter she was brought home by the villagers and they spent the night in the house of their uncle Abdul Rashid. Next day police came to the spot at about 1 PM. In cross examination she has stated that her, brother and sister were also in home On cross examination has stated that Faiz Ahmed Khan, Abdul Rashid Khan, Nazir Ahmed Khan and Sharief Ahmed Khan were along with her when her mother was kidnapped. Lot of people assembled on the spot, but she was unconscious. The village is comprised of about 30/40 houses. All of them came to the spot on hearing shot. The occurrence was witnessed by her brother and her sister besides her. Lot of people assembled on the spot, but she was unconscious. The village is comprised of about 30/40 houses. All of them came to the spot on hearing shot. The occurrence was witnessed by her brother and her sister besides her. She had narrated the incident to her father and the police and she narrated the incident to the police 5/6 days after the occurrence and she also told the name of the accused to the police. She made her statement before Munsiff Banihal.. The persons who accompanied her had also seen the accused and they had brought her back. Her statement u/s 164-A Cr.P.C. has been recorded on 14.5.2008 after more than 5 years of occurrence and more than 1 year from the date of re-investigation. PW - Altaf Hussain has deposed that on 07.04.2003 two militants came to their house at about 7:45 PM and kidnapped his mother. He had not recognized the accused on that day. His uncle and his sisters made statements to the police and he had not made any statement to the police. He was 15 years of age and his statement was not recorded by the police. Police came to him in 2007 and enquired him. He had not mentioned the name of the accused. He has been declared hostile and on cross examination by the Ld. P.P. he has denied that accused entered into his house, tied the eyes of his mother with a dupata and took her along. He could not recognize the militant because it was dark. He has denied that the accused was having a pistol in his hand and gun on his shoulder. He has 3 sisters namely Parveen Akhter, Rubia and Ishrat Bano. He and Rubina were sitting in one room, whereas Parveena Akhtar his elder sister was sitting in other room. He and their neighbours raised hue and cry at the time of occurrence and neighbors had also assembled on spot. They also chased the militants but it was dark. He has denied the suggestion that there was light, because the occurrence took place at 7:45 PM. He and his uncle chased the militants upto turn but the militants were not traceable when militants opened the fire he fell unconscious. His statement too has been recorded on 14.5.2008 after more than 5 years of occurrence and more than 1 year from the date of re-investigation. 11. He and his uncle chased the militants upto turn but the militants were not traceable when militants opened the fire he fell unconscious. His statement too has been recorded on 14.5.2008 after more than 5 years of occurrence and more than 1 year from the date of re-investigation. 11. If we appreciate the statements of these three eye witnesses, who are children of deceased, it is apparent that statement of Parveen Bano is not corroborated by other two witnesses. Because PWs Rubina and Altaf Hussain have categorically stated that some unidentified militants kidnapped their mother and killed; they did not recognize those militants. Further PW Rubina Bano has stated that her statement was recorded by Magistrate, but she gave the statement on the instigation of police. Further Parveen Bano has stated that Faiz Ahmed Khan, Abdul Rashid Khan, Nazir Ahmed Khan and Sharief Ahmed Khan were along with her when her mother was kidnapped. Out of these persons PWs Fayaz Ahmed, Abdul Rashid and Nazir Ahmed have stated nothing against accused. 12. Although conviction can be based on solitary statement of witness, but it should inspire confidence of court. 13. As the statement of PW Parveen Bano has been recorded after five years of occurrence, so it loses its creditability. 14. PW-2 Abdul Majid is another witness who has stated altogether a different story about his kidnapping; he has stated that on 08.04.2003 he returned home from Jammu. At about 8 PM accused along with two others entered into his house. Accused was armed with a gun and a pistol. He was kidnapped by the accused at gun point. He met other militants after a while. Accused and the militants took him to Mouhu Mangat Forest. The accused and the militants took him to a pasture on the next day where he was made to put of the clothes and the accused tortured him. Accused told him that yesterday he had killed Manzoora Begum and today he would kill him. Further he told that he handed over the dead body of Manzoor Begum but would not hand over his dead body to his family. He was instructed by the District Commander to shoot him. Accused put his gun on his shoulder. Subsequently, a couple of militants came there, snatched gun from the accused and left in the pasture. Further he told that he handed over the dead body of Manzoor Begum but would not hand over his dead body to his family. He was instructed by the District Commander to shoot him. Accused put his gun on his shoulder. Subsequently, a couple of militants came there, snatched gun from the accused and left in the pasture. The gun wielded person told the accused that he had killed innocent Manzoora Begum and today he would kill another innocent. Prosecution has projected him a witness of extra judicial confession of accused. But his statement too has been recorded on 14.5.2008 after more than 5 years of occurrence and more than 1 year from the date of re-investigation. PW- Abdul Latief, husband of deceased, is hearsay witness, because he told about the involvement of accused in commission of crime. He has deposed that the accused was a militant. Since the militants used to torture him, he was running a Tea-Stall at Lakhanpur. He returned home for 11/2 months in the year 2003 because his cousin brother had died. He returned to Lakhanpur and received telephonic information on 07.04.2003 and he was asked to return home. He returned on 08.04.2003 and found his wife dead. His children told him that accused Manzoor Ahmed Khan, kidnapped and killed their mother. But his two children have not named the accused as culprit. His statement u/s 161 Cr.P.C has been recorded on 24.5.2007 after more than 4 years of occurrence. 15. Now law has been settled that inordinate delay in examination witnesses during investigation are fatal for prosecution, if not explained by cogent means. In present case there is a delay of 4-5 years in recording the statements of witnesses during investigation. These have not been explained by cogent means. 16. PW Bashir Ahmed has stated nothing against accused rather he has stated that he was told that deceased was kidnapped by militants. PW Romesh Kumar has denied seizure memo. PW Trilok Nath is witness to seizure of arms and ammunition as incharge Malkhana. PW Mohd. Iqbal, who conducted initial investigation and prepared site-map, map of place of recovery of dead body, custody/seizure memo of dead body and receipt of dead body etc. He has also recorded the statements of two daughters of deceased, brothers in laws, husband of deceased and son of deceased. PW Mohd. Iqbal, who conducted initial investigation and prepared site-map, map of place of recovery of dead body, custody/seizure memo of dead body and receipt of dead body etc. He has also recorded the statements of two daughters of deceased, brothers in laws, husband of deceased and son of deceased. He has stated that as per his investigation, deceased was killed by militants. After re-scanning of file, we do not find any such statements of witnesses, which he recorded. So prosecution has concealed those statements of witnesses, who thereafter gave statements against the accused. 17. PW Prabhat Singh is I/O, who conducted re-investigation and bolster up a story against accused. Similarly, PW Altaf Din Katoch has conducted part re-investigation. No conviction can be based on the statement of I/O only. 18. In view of what has been discussed above, the judgment of acquittal passed by court below does not suffer from infirmity of law or facts. 19. The courts while appreciating the evidence in criminal cases have to see the decree of proof of higher side than that of civil case. The evidence produced by prosecution should be legally admissible. If there come the slightest doubts regarding the involvement of accused Court should not go on convicting the accused. In arriving at conclusion about guilt of accused charged with heinous crime, the court has to judge the evidence by yardsticks of probabilities. The law does not permit the court to punish the accused on basis of moral conviction or suspicion. The burden of proof never shift, it is always on prosecution. There is inevitably long distance to travel between ‘may be true’ and ‘must be true’. The distance to travel must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. 20. Thus, following the well known cardinal principles of law in appreciating the facts in heinous cases, where the punishment is capital punishment, we do not find any compelling or substantial reason for disturbing the well-reasoned judgment returned by the learned trial Court after appreciating the entire material evidence on record. 21. Viewed, thus, finding no merit in the appeal on hand filed by the State, the same is dismissed.