JUDGMENT :

Puneet Gupta, J.

The appellant-State has filed the appeal against judgment dated 11.12.2012, passed by the court of learned Sessions Judge, Poonch, whereby the respondent has been acquitted of the charges framed under Sections 302/449 RPC read with Sections 7/25/26/27 Indian Arms Act on the grounds: that the judgment is against law and facts of the case; that the trial court has misappreciated the prosecution evidence and misconstrued the law attracted to the facts of the case. The appellant seeks reversal of the impugned judgment and consequently conviction of the respondent.

2. The respondent has appeared in the appeal and is represented through counsel.

3. Before proceeding further in the appeal, it is profitable to provide the brief facts of the prosecution case projected before the trial court.

4. The Police Station, Surankote, received an information that Mushtaq Ahmed SPO was deputed at village Khaitan Draba along with two other SPOs. Mushtaq Ahmed along with two other SPOs was present in his house at Khaitan Draba and at about 12.30 AM some militants including Mohd. Taj entered his house. Mohd. Taj is the LET commander of the said organization and was accompanied by 5/6 militants, armed with heavy arms and ammunition, started indiscriminate firing and during the course of the same one bullet hit the head of SPO Mushtaq Ahmed who died on the spot whereas the other two SPOs ran away from the spot in order to save their lives. FIR No. 84/2004 was registered under Sections 302/120-B/121/122 RPC read with Sections 7/25/26/27 Indian Arms Act. The investigation followed in the case and Mohd. Taj was arrested during the course of investigation. The other militants could not be traced. The challan came to be presented on the completion of the investigations for the aforesaid offences against the accused Mohd. Taj and initially proceedings under Section 512 Cr.P.C were initiated against them. The trial court framed charges against the accused under Sections 302/449 RPC read with Sections 7/25/26/27 Arms Act. The accused denied the charges and claimed trial. The prosecution examined 14 witnesses in support of its case. The resume of the witnesses is as under:

5. PW-3 Riaz Ahmed has stated that he, Latief and the deceased were posted as SPO in village Salian. On 6th June, 2004 at about 9.30 PM, 5/7 militants came and one of them entered the house and indiscriminately started firing as a result a bullet hit the victim Mushtaq Ahmed who died on spot whereas the witness and the SPO Mohd. Latief were able to escape from the spot. The accused Taj had fired the bullets and is present in the court. The witness has also deposed that he had gone to participate in the marriage ceremony of SPO Mushtaq but the same is not mentioned in the statement under Section 161 Cr.P.C. He and Latief were present in the house of the deceased and were also patrolling the houses of Mohd. Shafi, Hassan Din, Iqbal Hussain and Mohd. Sharief and these persons were not present in the marriage function. Militants had started indiscriminate firing outside the house and he came to know in the morning that the victim had received bullet injury and had died. Only one militant had made indiscriminate firing. He was in the village when he came to know about the death of the victim though the information had been received regarding the death of Mushtaq before he got knowledge of the same. It is wrongly recorded in the statement under Section 161 Cr.P.C that the militants made indiscriminate firing inside the house. His statement was recorded after 10 days of the occurrence. His statement was not recorded on the day of occurrence. No one informed him that the militant who had entered the house was Taj Phalwan. He did not inform the police when he visited the police station as who had carried firing during the course of occurrence but revealed the same when his statement was recorded by the police. He and PW-Latief were not possessed of guns at the time of occur