The sufficiency of last seen evidence in establishing guilt and the importance of proximity between the factum of last seen and the death of the deceased.

Judgement

Rajnesh Oswal J.—The present acquittal appeal has been preferred by the erstwhile State of J&K, now Union Territory of J&K against the judgment dated 16.05.2017, passed by the Court of learned Principal Sessions Judge, Pulwama, by virtue of which the respondent has been acquitted for commission of offences under Sections 302, 364, 109 RPC and 7/25, 3/25 Arms Act under FIR No. 97/2000 of Police Station, Pampore.

2. The facts, which are necessary for the disposal of the present appeal are that the terrorists Ghulam Muhammad Bhat and Mushtaq Ahmad, with the intention to kill, with the aid and assistance of accused Bashir Ahmad Khanday, succeeded in forcing the deceased to come out of his home and thereafter with the aid and assistance of accused Bashir Ahmad Khanday, the deceased was killed. FIR bearing No. 97/2000 was registered and after the completion of investigation charge-sheet for offences under Sections 302, 364, 109 RPC and 7/25, 3/25 Arms Act, was filed against the respondent and the other two accused namely, Ghulam Muhammad and Mushtaq Ahmad. Both the accused other than the respondent were proceeded against under Section 512 Cr.P.C. The challan was committed to the Court of learned Sessions Judge, Pulwama by the learned CJM, Shopian. During the pendency of the challan, the accused other than the respondent were killed in the encounter with the security personnel and accordingly they were dropped. The Respondent was charge-sheeted for commission of abovementioned offences and thereafter the prosecution was directed to lead evidence. The prosecution examined 10 witnesses in support of the charge.

3. It has come in the evidence of the prosecution witnesses namely PWs Mst. Mahmooda, Mst. Waheeda, Mst. Raja (wife of the deceased) and Mushtaq Ahmad Khanday (son of the deceased) that at 7.00 p.m. the respondent came to the house of deceased and asked him to accompany him. The deceased accompanied the respondent but thereafter did not return. Mst. Raja and Mushtaq Ahmed have further stated that the dead body of the deceased was found next day at Konibal and also that the deceased had no enmity with the Respondent. Prosecution witnesses, namely Ghulam Nabi Khanday & Ghulam Muhammad Khanday, turned hostile and have denied any knowledge about the occurrence. They were cross-examined at length by the Public Prosecutor but no material could be elicited by him during cross-examination against the respondent. PW-Abdul Rehman Khanday was dropped by the prosecution. PW-Ghulam Ahmad Khanday, who is the brother of the deceased, stated that he saw the respondent going to the house of deceased and thereafter he went to the house of maternal uncle of the deceased and at 10.00 p.m. son of Ali Muhammad Khandey came to the house and told him that something had happened to Samad Khanday. PW-Sheikh Manzoor Qadir stated that he had conducted a partial investigation in the case and had only submitted the challan in the court of law and he expressed his ignorance about initial investigation. PW-Dr. Gurjeet Singh stated that in his opinion deceased had died due to hemorrhage caused due to injury. He admitted that the postmortem report is in his handwriting and bears his signatures.

4. The prosecution evidence was closed on 17.12.2009 and thereafter the statement of the respondent under Section 342 was recorded and he denied the allegations made against him. The respondent examined one witness, namely, Abdul Rehman Khanday, who was initially cited as a prosecution witness but was dropped by the prosecution.

5. DW Abdul Rehman Khanday denied that he ever deposed before the police that he had seen the accused in the company of three persons as mentioned in the statement under Section 161 Cr. P.C.

6. After hearing the arguments, the learned Trial Court acquitted the respondent by vide judgment dated 16.05.2017, which is impugned in the present appeal.

7. Learned Sr. AAG has vehemently argued that the prosecution has succeeded in proving the fact that