Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 960 (JK)

Maqsood Ahmad Bhat v. State of J & K

2017-10-26

ALI MOHAMMAD MAGREY, BADAR DURREZ AHMED

body2017
JUDGMENT : Badar Durrez Ahmed, J. The present appeal and reference arise from the decision of the 1st Additional Sessions Judge, Baramulla, dated 04.04.2014 and the consequent order on sentence dated 10.07.2014. By virtue of the judgment dated 04.04.2014 rendered in Criminal File No. 62/135, the learned 1st Additional Sessions Judge, Baramulla, convicted the appellant under Section 302 Ranbir Penal code for the murder of Dr. Riyazul Hassan S/o Ghulam Hassan. The appellant has also been convicted under Section 7/27 of the Arms Act, 1959. By virtue of the order on sentence dated 10.07.2014, the appellant has been sentenced to imprisonment for life on both counts along with a fine of Rs. 10,000/-. The said case arose out of FIR No. 87/2005 registered in Police Station Pattan. 2. The facts as alleged by the prosecution are that the appellant caused the death of the said Dr. Riyazul Hassan R/o Hanjiveera Bala by the use of prohibited arms and ammunition. As per the prosecution, the appellant is said to be a dreaded militant and District Commander of the HM Militant Outfit whereas the deceased was a BUMS doctor and worker of a political party and its zonal president. As per the prosecution, the appellant allegedly caused the death of the deceased with the purpose of instilling fear in the hearts and minds of the people. 3. Information was first received by the police on 15.06.2005 that at Hanjiveera Bala, Pattan, at about 1650 hours “unidentified militants” armed with prohibited arms and ammunition had fired bullets upon one person named Riyaz Ahmad Bhat and wounded him seriously and that the injured had been carried for treatment to SKIMS, Srinagar, but he succumbed to the injuries and passed away. Consequently, the police registered FIR No. 87/2005 under Section 302 Ranbir Penal code read with Section 7/27 Arms Act at Police Station Pattan. 4. The initial investigation was entrusted to Sub-Inspector Ghulam Rasool. On visiting the place of occurrence, he prepared the site map and recovered two bullet empties from the place of occurrence. He also recorded the statement of witnesses and had the postmortem examination conducted and completed other formalities associated with the initial investigation. 5. However, the police had to stall the investigation in the present case on account of non-identification of the accused and non-availability of evidence. He also recorded the statement of witnesses and had the postmortem examination conducted and completed other formalities associated with the initial investigation. 5. However, the police had to stall the investigation in the present case on account of non-identification of the accused and non-availability of evidence. It may be pointed out at this juncture that PW1-Haji Ghulam Hassan Bhat, who was the father of the deceased and PW2-Mst. Saja who was the mother of the deceased as also PW4-Abdul Gani Bhat, who was the father-in-law of the deceased and brother of PW1, had initially not named the appellant. As will be seen subsequently, when the investigation was resumed after a period of two years, PWs 1 and 2 had in their subsequent Section 161 statements named the appellant for the first time. PW4, however, named the appellant in court. 6. It appears that the investigation remained stalled till the appellant was arrested by SOG, Baramulla, on 17.01.2007 in connection with another case. Allegedly, the appellant made a confessional/disclosure statement indicating his involvement in the present case. The District Superintendent of Police, Baramulla, directed the officers of the concerned police station to carry out further investigation in the present case by virtue of an order dated 25.01.2007. Consequently, the SOG, Baramulla, handed over the appellant to police station Pattan for further legal action. The communication/order dated 25.01.2007, inter alia, to the extent relevant, reads as under:- “On 17.01.2007 a terrorist namely Maqsood Ahmed Bhat S/o Gh. Mohd. Bhat R/o Mamosa Pattan was arrested by SOG Baramulla. The said terrorist was functioning as District Comdr. Of HM outfit for District Baramulla, active since 1996 and is reportedly involved in the following cases 3. Killing of Dr. Riyaz Ahmed Bhat S/o Ghulam Hassan Bhat Block President of PDP R/o Hanjiveera Pattan on 15.06.2005, Case FIR No. 87/05 under section 302 RPC, 7/27 A. Act P/S Pattan “ 7. The appellant was allegedly involved in another criminal case arising out of FIR No. 64/2005 of Police Station Pattan, in which he is again alleged to have made a disclosure statement on 18.01.2007 before the concerned police. The appellant was allegedly involved in another criminal case arising out of FIR No. 64/2005 of Police Station Pattan, in which he is again alleged to have made a disclosure statement on 18.01.2007 before the concerned police. The disclosure statement was allegedly made in Kashmiri but, translated into English, it, inter alia, reads as under.- “I and Zahoor Ahmed Waza have concealed one rifle, two magazines and 60 bullets beneath the earth in an orchard near the railway track at Hanjiveera which I can get recovered.” 8. It is further alleged that consequent to the said alleged disclosure statement, the rifle, two magazines and 60 bullets were allegedly recovered at the instance of the appellant. However, the appellant was acquitted in the case arising out of FIR No. 64/2005 on account of no evidence. We may point out that initially the investigation in the present case was conducted by PW9-Ghulam Rasool, SI, P/S Bandipora but, after it was stalled, as mentioned above, and resumed subsequently the investigation was continued by PWlO-Mohd. Yousuf Bandh, SDPO, Pattan. Apparently, the alleged AK-47 Rifle which was recovered pursuant to the alleged disclosure statement of the appellant in FIR No. 64/2005, was sent to FSL, Srinagar, for examination for the purposes of verifying whether the bullet empties recovered and seized from the place of occurrence in the present case were fired from the same rifle. It appears that the report of the FSL dated 20.03.2007 confirmed that the said AK-47 rifle had been used for firing and that the said rifle had been found to be in working condition and that the said bullet empties had, in fact, been fired from the said rifle under examination. It is, however, pertinent to note at this juncture itself that nobody from the said FSL was examined nor was any ballistic expert examined in court. 9. As a consequence of re-opening of the investigation which had hitherto been stalled, statements of PWl-Haji Ghulam Hassan Bhat and Mst. Saja (PW2) and PW3-Ghulam Mohammad Tantray were again recorded on 15.02.2007. There are, therefore, two sets of statements attributed to the said witnesses. One set was recorded immediately after the occurrence in 2005 and the other set on 15.02.2007 after re-opening/further investigation. It is in the second set of statements that PW1 and PW2 have named the appellant. 10. Saja (PW2) and PW3-Ghulam Mohammad Tantray were again recorded on 15.02.2007. There are, therefore, two sets of statements attributed to the said witnesses. One set was recorded immediately after the occurrence in 2005 and the other set on 15.02.2007 after re-opening/further investigation. It is in the second set of statements that PW1 and PW2 have named the appellant. 10. Investigation was completed and the challan was produced before the Judicial Magistrate, Pattan, who committed the same to the court of the Sessions Judge, Baramulla, on 07.07.2007. Consequent thereupon the charge was framed and the appellant was charged for having committed the offences punishable under Section 302 Ranbir Penal code and 7/27 Arms Act, by virtue of an order dated 21.02.2008. The appellant pleaded not guilty and claimed trial. The prosecution was directed to produce evidence in support of the charge. Although the prosecution produced a list often witnesses, they had, however, produced only seven witnesses for examination before court. 11. The trial court has set out in detail the testimonies of all the seven witnesses. We need not repeat the same and shall only refer to important aspects of the testimonies. 12. PWl-Haji Ghulam Hassan Bhat, is the father of the deceased. He was examined on 26.05.2008. He stated that the appellant was known to him. He stated that he found his son near the shop of Ghulam Mohammad Tantray and upon enquiry from him, his son (the deceased) responded that he had to leave for Srinagar and wanted to purchase a melon for his son from the shopkeeper. It has come in evidence that the deceased was a doctor by profession and operated two clinics at Srinagar. The PWI also stated that his wife, Mst. Saja, also arrived there. His son carried the melon in his right hand and a mobile phone in his left and was about 10 to 15 feet away from them when he received a phone call. He held the mobile in his left hand and raised it to his ear to receive the call and just at that moment the appellant emerged from the compound of one of their neighbours, Ghulam Qadir Wani, and as he came close to his son, the appellant fired a bullet from his gun which he had kept concealed underneath his shirt. PW1 further stated that the bullet directly hit the son's heart and pierced his chest and he collapsed right there. He stated that his wife PW2-Mst. Saja and he pursued the accused but he rushed to the aid and care of his son. However, his wife pursued the appellant a little further screaming for help from the shopkeeper, Ghulam Mohammad Tantray, for nabbing the accused. The accused/appellant fired a bullet in the air to scare away his pursuers and fled away. Thereafter, according to this witness, he and his wife immediately got busy taking care of their injured son and took him in the vehicle for treatment towards Srinagar where the doctors in the hospital declared him as brought dead. The corpse was brought back to their residence. The police also arrived at the place of occurrence and the police recovered two bullet empties (Khokhas) from the place of the incident and in that regard prepared the seizure memo (Exhibit PW1/1). 13. In his cross examination, this witness has stood by his stand in examination in chief. 14. The next witness is PW2-Mst. Saja, who is the wife of PWI and mother of the deceased. In her examination-in-chief, she deposed that the appellant was known to her. She corroborated PWI by stating that the deceased was near the shop talking to the shopkeeper when his father arrived from Srinagar. The deceased had purchased a melon from the shopkeeper and in the meantime he received a phone call and he took the phone in his right hand (this is a minor contradiction from the statement of PWI, who stated that he had the mobile phone in his left hand). She further stated that at that moment, the accused/appellant emerged from the compound of a neighbour and approached the place of incident and opened fire and targeted her son. She further stated, taking God as a witness, that the appellant fired upon her son in her presence. She further stated that she pursued the accused but the accused opened fire in the air and fled away and she returned to the place of occurrence and found her son injured and he had collapsed on the ground. She stated that she along with her husband took the deceased in the vehicle to Srinagar and then he died. She further stated that she pursued the accused but the accused opened fire in the air and fled away and she returned to the place of occurrence and found her son injured and he had collapsed on the ground. She stated that she along with her husband took the deceased in the vehicle to Srinagar and then he died. She further stated that the incident had bewildered her and only when the shock had lessened that she rendered her statement to the police. She also stated that the appellant had opened fire from a big gun. 15. In her cross examination, she has withstood detailed questioning by the defence and maintained her testimony in terms of her examination in chief. She has stated categorically that she had no recollection of the time when they returned from Hospital as she had been suffering from anxiety for the last four years and sometimes she loses control of herself. She also stated that the appellant had neither any friendship nor enmity with them and that she resides four villages away from their village. It appears that PW2 was overcome with emotion on 28.03.2009 when her deposition was first being recorded. The cross examination was, therefore, deferred and it was finally continued and recorded on 30.03.2009. 16. PW3-Ghulam Mohammad Tantray is the shopkeeper. In his examination in chief he deposed that the appellant was not known to him and that the deceased was near his shop when he was fired upon. The deceased was taken to Srinagar. He submitted that he had given a statement to the police on that date itself and that the police had also seized bullet empties and prepared a memo and he had affixed his thumb impression on the same. He further stated that he only made one statement before the police. In the course of cross his examination, PW3 stated that he was inside the shop at the time of the firing and that he did not see as to who had fired and from where the firing took place. He also stated that he did not see the appellant firing anywhere near his shop. He had seen the appellant in court today. 17. PW4-Abdul Gani Bhat stated that the appellant was known to him. On 15.06.2005 he had visited the house of a fellow villager. He also stated that he did not see the appellant firing anywhere near his shop. He had seen the appellant in court today. 17. PW4-Abdul Gani Bhat stated that the appellant was known to him. On 15.06.2005 he had visited the house of a fellow villager. At that time, he heard the sound of firing coming from the direction of his house. He rushed home and heard people shouting that Riyazul Hassan Bhat, who was both his nephew and son-in-law, had been shot by a bullet. He further stated that the appellant, Maqsood Ahmad Bhat, was seen running away and that he was alone and unmasked. He further corroborated the statements of PWs 1 and 2 by stating that Mst. Saja (PW2) pursued the appellant. He also stated that everyone named accused Maqsood Ahmad Bhat. He also stated that he asked people to refrain from naming the appellant and admonished them that what they had suffered on that day may also be suffered by them on another day as the appellant had been an active militant at that time. He reiterated that it was only the appellant who had killed the deceased. In the course of his cross examination, he stated that the statement which he gave before court was not given by him to the police and that he had not named the appellant in his statement given to the police because terror had gripped him at that time. He stated categorically that he did not name the accused at that time because of terror. In cross examination he reiterated that in his statement under Section 161 he had told the police that the un-identified terrorist had managed to escape from the place of occurrence after commission of the act. 18. PW9-Ghulam Rasool, Sub-Inspector, posted at P/S Bandipora, who was the initial investigating officer, essentially deposed that he had taken the corpse into custody, prepared the custody memo and the site map. He had also recovered two bullet empties from the place of occurrence under seizure memo exhibit PW-1/1. He had also recorded the initial statement of the witnesses and thereafter no further proceeding was conducted by him. It is pertinent to recall that the investigation had been stalled because of initial non-identification of the appellant and the non-availability of the evidence. 19. PW-10-Mohd. He had also recorded the initial statement of the witnesses and thereafter no further proceeding was conducted by him. It is pertinent to recall that the investigation had been stalled because of initial non-identification of the appellant and the non-availability of the evidence. 19. PW-10-Mohd. Yousuf Band, SDPO, is the investigating officer who resumed the investigation in the circumstances indicated above. He stated that after receiving the order in 2007 for further investigation, he took up the investigation and recorded the statements of some of the witnesses afresh. He also stated that he obtained the seized articles in case FIR No. 64/2005 and sent a letter to the FSL, Srinagar, with the request to examine the two bullet empties recovered in the instant case and to report as to whether the same had been fired from the recovered weapon. According to him, FSL, Srinagar, submitted a report and confirmed that the two bullet empties recovered from the place of occurrence on the date of occurrence had in fact been fired from the seized weapon. This, according to the said witness, confirmed the involvement of the appellant in the commission of the offence. He further stated that he completed the investigation and presented the challan in the court. In his cross examination, he, however, stated that he knew the appellant only after his arrest and that he was not earlier known to him by face. He further admitted that the alleged disclosure made by the appellant was not made in his presence nor was any recovery made in his presence nor were the bullet empties recovered in his presence. He also admitted that he had no personal knowledge of the proceedings in the case between 15.06.2005 and 07.06.2006. He admitted that the witness to the alleged disclosure in case FIR No. 64/2005 and the alleged recovery made pursuant thereto had not been arrayed as witnesses in the present case. 20. PW8-Dr. Shakeel Ahmed, is the doctor who conducted the post-mortem examination on the body of the deceased. In his examination in chief, he has categorically stated that:- “on examination of chest there was fracture of left third rib. Lungs and pleura were lacerated on left side. Left ventricle and right atrium and pericardium lacerated. Injuries: 1. 20. PW8-Dr. Shakeel Ahmed, is the doctor who conducted the post-mortem examination on the body of the deceased. In his examination in chief, he has categorically stated that:- “on examination of chest there was fracture of left third rib. Lungs and pleura were lacerated on left side. Left ventricle and right atrium and pericardium lacerated. Injuries: 1. Gunshot wound of artery in 3rd intercostal space on left side of chest along mid cervical line and there was wound of exist in 6th intercostal space posterior on left side below the scapula. Abdomen, genital-urinary system and extremities were found normal. Opinion. The deceased under autopsy has sustained gunshot injury causing severe damage to vital organs of heart and left lung leading to shock and cardio pulmonary arrest and caused death. The certificate is in my hand writing and signature. The post-mortem report is exhibited as EXT. P8.” 21. Nothing has been elicited in his cross examination which would contradict the aforesaid report of injuries and opinion as to the cause of death. It is evident that the deceased sustained a gunshot injury causing severe damage to the vital organs of heart and left lung leading to shock and cardio pulmonary arrest and ultimately leading to the death of the deceased. 22. After closure of the prosecution evidence on 15.04.2011, the appellant was examined under section 342 of the Criminal Procedure Code, 1973. It was specifically put to the appellant that:- “During trial evidence has been produced against you that you have shot bullets, fired upon one person Riyaz Ahmed Bhat son of Ghulam Hassan Bhat resident of Hanjiveera on 15.06.2005 at Hanjiveera Bala in presence of the witnesses 1 and 2 and injured him who was then carried to SKIMS Srinagar but succumbed to the injuries. Prosecution witnesses 1 and 2 have rendered ocular evidence against you regarding the commission of the offences. Prosecution witness No. 3 has proved the recovery and seizure of the bullet empties exhibited as EXPW 1. Prosecution witness No. 4 has rendered evidence against you that he saw you running away unmasked from the place of incident. Prosecution witness No. 9 has proved the contents of Fard Magboozgi Naash EXPW 1/1 and seizure memo EXPW 1 and injury memo (Form Mazrubi) EXPW 1/2. Prosecution witness No. 8 has confirmed post mortem report and the opinion rendered thereon EXP. P8. Prosecution witness No. 9 has proved the contents of Fard Magboozgi Naash EXPW 1/1 and seizure memo EXPW 1 and injury memo (Form Mazrubi) EXPW 1/2. Prosecution witness No. 8 has confirmed post mortem report and the opinion rendered thereon EXP. P8. How would you explain this?” The appellant/accused responded as under:- “The prosecution evidence is not founded on true facts but it is concocted and false because I have no knowledge of the incident. Police concerned has connived with the complainant party and concocted the instant case on the basis of an unfounded disclosure attributed to me in case FIR No. 64/05 which disclosure bears the date of 18.01.2007 whereas the incident occurred on 15.06.2005 and this proves the falsity of the incident. Police has recorded the statements of the said witnesses in the year 2007 which establishes that the police and the complainant party has concocted the instant case to put me in jeopardy. I am innocent and ask for justice.” 23. Thereafter the statements of the defence witnesses were recorded. The defence produced four witnesses; DW1 (Ghulam Mohammad Mir); DW2 (Zahoor Ahmed Ganie); DW3 (Naseer Ahmed Bhat); and DW4 (Abdul Rashid Mir). All these witnesses have stated that the death of the deceased was caused by un-identified gunman/gunmen. DWs 3 and 4 have additionally stated that the said gunman was masked. The attempt on the part of the defence, it appears, was to establish that the death of the deceased was caused by un-identified person(s). 24. We have examined the impugned judgment in great detail and have also considered the arguments advanced on the part of the appellant as well as on the part of the State with care and circumspection. At the outset we may point out that we find the impugned judgment to be thorough and extremely well reasoned. The learned Additional Sessions Judge has analyzed the case from the following stand points:- (a) What was the cause of death? In other words, was it homicidal? (b) Has the assailant being identified and whether the accused was the assailant? (c) Whether the accused used prohibited arms to shoot the deceased which caused his death? (d) Whether the accused had the intention to cause the death of the deceased? In other words, was it homicidal? (b) Has the assailant being identified and whether the accused was the assailant? (c) Whether the accused used prohibited arms to shoot the deceased which caused his death? (d) Whether the accused had the intention to cause the death of the deceased? Apart from this the learned Additional Sessions Judge has also examined the following points raised on the part of the defence:- (i) What would be the value of a disclosure statement made in another case which is not proved in the present case? (ii) The submission on the part of the defence that there was a failure to connect the appellant with the seizure memo in FIR No. 64/2005 and the consequent failure to prove the said seizure of the weapon of offence? (iii) The change in the statements of PWs 1 and 2 under Section 161 Cr. P.C., 1973 as they had initially not named the appellant but later, after two years, named the appellant in their second set of statements under Section 161 Cr. P.C., 1973 (iv) The submission on the part of the defence that all the three witnesses arrayed as eye witnesses, namely, PWI, PW2 and PW4 were partisan witnesses as they were the parents of the deceased and uncle/father-in-law of the deceased, respectively. 25. In so far as the first point is concerned, that is with regard to the cause of death, there can be no manner of doubt that the deceased died because of the gunshot injury as opined by PW8-Dr. Shakeel Ahmed. It was clearly homicidal. Therefore, the conclusion of the trial court that the deceased received a bullet and suffered the gunshot injury which caused his death, cannot be faulted. 26. The next issue which was examined by the learned trial court pertains to the identification of the assailant. In our view the testimonies of the PWs 1, 2 and 4 clearly prove and establish the identity of the assailant. In other words, the appellant was the assailant. There may be some minor contradictions between the testimonies of these witnesses but the defence has not been able to shake their testimonies with regard to PWs 1 and 2 having witnessed the occurrence and PW4 having seen the appellant fleeing from the scene. In other words, the appellant was the assailant. There may be some minor contradictions between the testimonies of these witnesses but the defence has not been able to shake their testimonies with regard to PWs 1 and 2 having witnessed the occurrence and PW4 having seen the appellant fleeing from the scene. We entirely agree with the conclusion of the trial court that the prosecution has been able to prove beyond reasonable doubt the identification of the appellant and his presence at the place of occurrence. Since the trial court has examined this aspect threadbare and we see no reason to add anything to the consideration given by the trial court, it would be appropriate for us to set out the reasoning of the trial court as under: “The identification of the accused and his presence at the place of incident are crucial for the decision of the instant case. In the first place, it will be observed that the seeming contradiction between the testimony of the PWI and PW2 may be the result of difference of observation or due to fading of memory. The PWI has rendered his testimony before this court on 26.05.2008, that is, about three years after the incident. The PW2 has rendered her statement before this court on 28.03.2009, that is, about four years after the incident. In such circumstances, this court cannot afford to adopt any hyper technical approach in the manner of appreciating the evidence. This court is bound to consider the realities of life and to consider the fact that flux of time takes its toll on human memory. Human memory tends to fade away with the flux time and details become obscure. Seen thus, there can be expected differences in the statement of details rendered by the witnesses. Sometimes the witnesses may improve a little upon the details and at other times, the witnesses may omit something. The courts usually overlook the minor differences in details and the minor improvements and omissions in the testimony but where the differences, discrepancies, contradictions, improvements and omissions touch the substantial and material aspects of the case, the courts need to be more circumspect in its manner of appreciation of the evidence. The courts usually overlook the minor differences in details and the minor improvements and omissions in the testimony but where the differences, discrepancies, contradictions, improvements and omissions touch the substantial and material aspects of the case, the courts need to be more circumspect in its manner of appreciation of the evidence. Seen in the background of the reasons given above, the PW2 does not appear to contradict the PWI as regards the identification of the accused and his presence at the time of the incident. Both of these witnesses have stated that the accused emerged from the compound of a neighbour's house, that he carried a gun, that he confronted the deceased, that he fired bullet upon the deceased and fled from the place of incident and that they pursued him, especially the PW2. Both of these witnesses have borne testimony that the PW2 asked for help from the shopkeeper in nabbing the accused and that the accused fired one more bullet in the air to dissuade the PW2 from her pursuit. The PW3 and PW4 have corroborated the testimony of the PWI and PW2 with regard to the fact that the PW2 pursued the accused and even asked for help. The consistency between the statement of the PWI and PW2 is not a matter of co-incidence but such consistency arises from the fact that both the prosecution witnesses were present near the place of incident, that both of them had seen the accused emerging from the compound of a neighbour's house and confronting the deceased, that both of them had seen the accused shooting at the deceased and that both of them had seen the accused escaping from the place of incident and firing in the air to escape pursuit. The inherent consistency in the statements of the PW1 and PW2 with regard to the graphic details of the incident goes a long way to prove that the PW1 and PW2 are the ocular witnesses of the incident and the seeming contradictions, as said above are bound to occur with respect to minor details also in view of the fact that these PWs have seen the incident of their son being shot with a bullet in their own presence. The PWs were perplexed and awestruck by the dastard act and in such cases, no human being can be said to attend to minor details of the incident. The PWs were perplexed and awestruck by the dastard act and in such cases, no human being can be said to attend to minor details of the incident. The PW2 has repeatedly deposed in her statement before this court that she was perplexed and awestruck by the incident and that she had been awestruck by the incident may be inferred from her demeanor recorded by this court during the course of her examination. There exists a need for this court to consider the psychological condition of the witnesses who found their son being shot with a bullet and dying in their presence. The account of the incident borne out from the testimony of the PW 1 and PW2 possesses both inherent consistency and congruency in material particulars that there can be drawn no other inference from their statements than both of them are the ocular and natural witnesses of the occurrence and that they have seen and identified the accused.” 27. In addition, it is evident that PW4-Abdul Gani Bhat, has also identified the appellant during the course of his fleeing from the place of the incident. This sufficiently corroborates the testimonies of PWs 1 and 2. Although PW3-Ghulam Mohammad Tantray has stated in court that he did not see the appellant firing at the deceased. He did not contradict the other prosecution witnesses nor did he put their statements in jeopardy. 28. The third aspect which was considered by the trial court was whether the appellant had used prohibited arms to shoot the deceased and to cause his death. This aspect also, according to us, has been established by the fact that all the eye witnesses PWI, PW2 and PW4 stated that the appellant was armed with a gun. In fact, PW2 stated that the appellant was armed with a big gun like the one she had seen being carried by policemen and military men. Therefore, the conclusion of the trial court that the appellant carried and used a firearm is also well established by the prosecution evidence. 29. The fourth point which was considered by the trial court was with regard to the intention. We are of the view that the trial court has appropriately dealt with this aspect of the matter and does not require any further improvement on our part. 29. The fourth point which was considered by the trial court was with regard to the intention. We are of the view that the trial court has appropriately dealt with this aspect of the matter and does not require any further improvement on our part. The trial court, inter alia, observed as under:- “The only possible way of discovering a man's intention is by looking at what he actually did, and by considering what must have appeared to him at that time, the natural consequences of his conduct. The intention of the accused to cause the death of the deceased can be gathered from the fact that he shot the deceased with a firearm from a close range and aimed the bullet at his heart. The bullet hit the heart of the deceased and inflicted upon him a fatal injury which is sufficient in the ordinary course of nature and in all probability to cause his death. The act of the accused appears, beyond doubt, to have been designed to cause the death of the deceased. The accused could have foreseen that the natural result of his act would be certain death of the deceased. The evidence present on record of the file indicate that the accused aimed the gunshot at the vital organ of the heart of the deceased and the accused could be presumed to have foreseen the natural consequence of his act because when a bullet is aimed and fired from a close distance at the vital organ of heart, the natural consequence would be death. The medical evidence on record proves beyond doubt that the deceased received gunshot injuries in the heart and lungs. The medical witness has opined that “the deceased under autopsy has sustained gunshot injuries cause severe damage to vital organs of heart and left lung leading to shock and cardiopulmonary arrest and caused death.” In such facts and circumstances of the case, the prosecution can be said to have proved beyond reasonable doubt that the accused intended to cause the death of the deceased and committed the act with that mental state.” 30. After having considered the prosecution case in detail and concluded in favour of the prosecution, the trial court also examined the issues raised on the part of the defence which we have already indicated above. After having considered the prosecution case in detail and concluded in favour of the prosecution, the trial court also examined the issues raised on the part of the defence which we have already indicated above. First of all was the issue with regard to the value of the disclosure statement allegedly made in another case arising out of FIR No. 64/2005. We are of the view that once there is direct ocular evidence which clearly pins the guilt on the appellant, the issue of the disclosure statement recedes into the background and is of no consequence. The trial court has of course submitted that the alleged disclosure statement was introduced only by way of corroboration by the prosecution but, this case needed no corroboration in view of the unshaken ocular evidence completely independent of the disclosure statement allegedly made in the other case. We agree with the observations of the trial court on this aspect of the matter which are to the following effect:- “The question which arises before the court is that does the court require proof of the disclosure statement ascribed to the accused when the guilt of the accused has been proved beyond reasonable doubt by the prosecution by adducing ocular evidence. In the opinion of the court, the proof of the disclosure statement would be corroborative but when the prosecution has produced substantive evidence to prove the guilt of the accused beyond reasonable doubt and that the evidence adduced by the prosecution could sustain the guilt of the accused without corroboration, the court should not insist on corroboration. Corroboration of evidence is not an inflexible rule. The corroboration of evidence may be insisted upon by a court only in cases where the ocular or other direct evidence is lacking in some material and substantial particular which is to be supplied by the corroborative piece of evidence. The facts and circumstances of this case are peculiar. Had the case rested solely on the disclosure statement attributed to the accused in case FIR No. 64/2005, the rule of prudence would be to seek corroboration of the disclosure statement. But the case assumes a different character on account of the ocular evidence of the incident which has come on record. The instant case no longer depends upon the disclosure statement attributed to the accused. But the case assumes a different character on account of the ocular evidence of the incident which has come on record. The instant case no longer depends upon the disclosure statement attributed to the accused. Sufficient evidence has been produced by the prosecution which establishes the instant case independent of, and apart from, the disclosure statement. Hence in the facts and circumstances of the case, this court does not find any reason to base the instant case on the disclosure statement attributed to the accused and wherefore this court does not seek or insist on corroborative evidence.” 31. Similar is the reasoning with regard to the allegation that there was failure to prove the seizure of the weapon of offence in the present case. The non-examination of the ballistic expert is also not fatal to the prosecution case. This is so because the recovery of the rifle (alleged weapon of offence) is not an issue anymore in this case in the presence of the clear and unshaken ocular testimony of PWs 1, 2 and 4 clearly connecting the crime with the appellant. 32. On the aspect of change of statements of PWs 1 and 2, when they were initially recorded in 2005 and subsequently recorded in 2007, we are of the view that this change has been sufficiently explained by the said witnesses and particularly by PW4. We recall that initially PWs 1 and 2 and indeed PW4 had not named the appellant. But, subsequently after the arrest of the appellant, PWs 1 and 2, in the second set of Section 161 statements, had categorically named the appellant as the perpetrator of the crime. PW4 did not make a second statement under Section 161 but in his deposition in Court, he named the appellant and also gave reasons for not naming the appellant earlier. This aspect has also been adequately considered by the learned Additional Sessions Judge as under:- “The PWs had divulged a reason which prompted them to withhold name of the accused in the first instance. They have assigned fear and dread of the accused as the cause which prompted them to withhold the name of the accused in the first instance. This aspect has also been adequately considered by the learned Additional Sessions Judge as under:- “The PWs had divulged a reason which prompted them to withhold name of the accused in the first instance. They have assigned fear and dread of the accused as the cause which prompted them to withhold the name of the accused in the first instance. The reasonability of the cause divulged by the PWs cannot be discarded because the people of the state and especially the people of this part of the state have undergone periods of trauma and periods of uncertainty during the long years of armed militancy and turmoil. The fear of repercussions and the dread and terror of the times was ever present in the mind of the people and the people considered reticence more prudent and opportune than brazen uproar. The witnesses had been reticent when they rendered their first statements to the police out of fear and dread of repercussions but when the subject of fear and dread was removed, they can be said to have regained confidence to break their reticence and come up with the true facts hitherto not divulged by them for obvious reasons. The prosecution witness No. 4 has been examined in the court and he has rendered testimony that he did not disclose the name of the accused before the police for fear of repercussions and that threat loomed large at that time. The PW4 has also rendered testimony before this court that he advised and admonished people to refrain from naming the accused and from saying that the accused has shot the deceased with bullet because what he and his family has faced may be faced by the others as well. He has also rendered testimony that he asked people to refrain from saying that what the accused has done was either wrong or right because if they will condemn the act of the accused he will be displeased and if they justified his act, the PW4 and his family will be hurt. The PW4 has not expressed his fears and apprehensions before any person but that does not mean that he did not have the fears and apprehensions of adverse consequences. The PW4 has not expressed his fears and apprehensions before any person but that does not mean that he did not have the fears and apprehensions of adverse consequences. It can be understood that when the PW4 has himself admonished and advised people to refrain from naming the accused, he cannot be said to divulge the name of the accused to others and expressing his apprehensions and fears. The PWs 1 and 2 have stated in their statements recorded under section 161 of the Code that the accused was an active militant and that terror loomed large during those years because of the fear of the accused. The statements of the PWs have not been rebutted by the defence and they can be used to lend support and corroboration to the fact that they withheld the name of the accused out of fear and repercussions. The second set of statements rendered by the PWs to the police concerned in terms of section 161 of the Criminal Procedure Code, 1973 have been recorded by the police concerned after the arrest of the accused. Thus the withholding of the name of the accused by the PWs in the first instance when they rendered their statements to the police in terms of section 161 of the Criminal Procedure Code, 1973 can be said to be prompted by a just, reasonable and sufficient cause and the divulgence of the name of the accused after his arrest can also be said to be justified in the peculiar circumstances of the instant case “ 33. With regard to the issue raised by the defence that PWI, PW2 and PW4 were partisan/interested witnesses, the trial court has held that simply because the witnesses were related to the deceased did not mean that their testimonies should be thrown out. If the testimonies stand the test of cross examination and are regarded by the court to be truthful, there is no reason as to why testimonies of such related witnesses should not be accepted by the court. What is of relevance is that their testimonies must be of a stellar quality and should not be demonstrably partisan. The trial court has rightly observed that the close relationship between the deceased and the witnesses did not make them interested witnesses. What is of relevance is that their testimonies must be of a stellar quality and should not be demonstrably partisan. The trial court has rightly observed that the close relationship between the deceased and the witnesses did not make them interested witnesses. An interested witness is one who renders false evidence to implicate the accused in a criminal charge out of motives of grudge, ill will and animosity etc. The trial court further observed and, in our view, rightly so, that a witness who is a close relative of the deceased cannot ipso facto be equated with an interested witness unless the circumstances and facts rendering him to be an interested witness are not brought to the knowledge of the court. In the present case, the defence has not been able to bring out any fact or circumstance which was suggestive of the fact that the said witnesses had falsely implicated the accused or that they had any ill will or animosity towards the accused. In these circumstances, the plea with regard to the witnesses being partisan was, in our view, rightly rejected by the trial court. 34. In view of the discussion above, we are clearly of the view that the learned Additional Sessions Judge has correctly convicted the appellant for having committed the offences under Section 302 Ranbir Penal code and Section 7/27 Arms Act and the sentence of life imprisonment along with fine of Rs. 10,000/- is also in order. Consequently, the appeal is dismissed and the sentence awarded by the trial court is confirmed. The reference is disposed of accordingly.