The reliability of eyewitness testimony and the sufficiency of evidence to prove the charges under Section 302 RPC and Section 27 of the Arms Act.

Virender Singh, J.

1. Appellant-Mohd. Amin Dar stands convicted under Section 302 of Ranbir Penal Code (RPC) and Section 27 of Arms Act vide judgment dated 20.08.2002 passed by Additional Sessions Judge, Ramban. He has been sentenced to undergo life imprisonment under Section 302 RPC and seven years rigorous imprisonment under Section 27 of Arms Act. Both the sentences, however, have been ordered to run concurrently. Aggrieved of the judgment of conviction/sentence, he has preferred Cr. Appeal No. 05/2002. The sentence imposed upon him has been sent to this Court by the trial Court for confirmation. vide Confirmation No. 04/2002. Hence, Cr. Appeal No. 05/2002 and Confirmation No. 04/2002 have been clubbed together for disposal.

2. It needs to be mentioned here that three other coaccused of the Appellant namely Nissar Ahmed alias Tunda, Abdul Latif alias Tufail and Ghulam Mohi-ud-Din were also booked in the present case. Nissar Ahmed and Abdul Latif could not be nabbed by the police and, as such, proceedings under Section 512 Code of Criminal Procedure (Svt.1989) initiated against them. Ghulam Mohi-ud-Din, however, died in an encounter. Therefore, it is the Appellant only, who faced the trial.

3. Another aspect, which needs to be mentioned here is that as per prosecution case, deceased was hit by bullet shots fired from AK-47 allegedly used by the Appellant, for which, he stands convicted and sentenced under Section 27 of Arms Act. Since it was a prohibited arm as defined in Section 2(i) of the Arms Act, usage thereof if results in death of any person, calls for death penalty only as provided under Section 27(3) of the Arms Act. This Court, therefore, prima facie, found that the learned trial Court has committed a legal error in imposing life imprisonment upon the Appellant and as such, vide order dated 20.02.2009 issued a notice to him as to why he be not awarded the death penalty in the event of conviction being upheld by this Court. Since the Appellant was languishing in jail, the notice was served upon him and after its due service, Mr. O.P. Thakur, who is otherwise representing him, has put in his appearance. The service of the said notice upon the Appellant is, thus, complete. One more fact, which requires mentioning, is that the Appellant was charged under Section 302/120-A RPC read with Section 34 RPC and Section 27 of Arms Act. However, no finding has been returned by the trial Court with regard to the charge of Section 120-A RPC. The Appellant simply stands convicted for the substantive offence of Section 302 RPC alongwith suffering conviction under Section 27 of Arms Act.

4. At the very outset, we show our concern in the delay caused in deciding the instant appeal, which is of year 2002. Undoubtedly it has gone very old age-wise.

5. Primarily, it is on account of judicial wrangles However, at some stage, delay is also attributable to the Appellant as well. The trial Court also took a considerable period of 6-7 years in deciding the case. This is how the Appellant is in jail for last 14 years. This is just for reference, which otherwise has no effect on the merits of the case. Let us now advert to the prosecution case in brief: Occurrence is of 10.10.1995. Place is village Nagam (Tehsil Banihal) falling within the jurisdiction of Police. Station Banihal. Deceased is one Mastan Ali Sheikh. PW Ahmad Ullah, Chowkidar of village Nagam, is the first informant of the occurrence. On his oral information, F.I.R. No. 88 of 1995 came to be registered in Police Station Banihal under Section 302/120-B RPC and Section 3/ 25 Arms Act by PW Dy.SP Sanaullah, the then SHO of Police Station Banihal. Ahmad Ullah is not an eye witness to the occurrence. On the information supplied by him to the police, PW Abdul Qayoom ASI, the then Head Constable of Police Station Banihal, was entrusted with the investigation of the present case, who reached the place of occurrence, prepared the rough site plan of the occurrence, took the dead body in