JUDGMENT :

Rahul Bharti, J.

Heard the learned Counsel for both sides.

2. The appellant-State has come in appeal under the J&K Code of Criminal Procedure 1939 AD (Cr.P.C in short) against a judgment of acquittal dated 18.04.2013 passed on file no. 11/murder by the Court of learned Additional Sessions Judge, Doda thereby acquitting the respondent of the charge under Section 302 Ranbir Penal Code, 1939 AD.

3. The occurrence resulting in commission of the offence is of intervening night of 23rd-24th, October, 2005 in village Shori when one Hoshiyar Singh son of Prithvi Raj resident of Shelth Humbal was found done to his death with his dead body lying over a cot on the roof top of house of prosecution witness cited as PW-12 Prabhat Singh S/o Chur Singh.

4. It was this occurrence having taken place which resulted in the registration of an FIR no. 21/2005 dated 24.10.2005 recorded at 17:00 hours with the Police Station Assar, Doda.

5. Acting upon the said FIR, the investigation into the crime was undertaken by the then SHO, Police Station Assar, Doda, as being the Investigating Officer. On the basis of the investigation, the Investigating Officer (I.O in short) came forward with a conclusion that the crime was committed by the respondent by hitting the deceased Hoshiyar Singh on his head with a blow of kulhari so forcefully that axe of it remained stuck in the skull of the crime victim Hoshiyar Singh and the respondent had made an escape from the place of occurrence of the crime.

6. The version drawn by the IO about the commission of said crime was based upon his investigation based upon version of the witnesses, both ocular and related. The version which came to be stated in the police challan is to the effect that the respondent and the deceased Hoshiyar Singh were friends and used to tend their livestock i.e., sheep and goats. Deceased Hoshiyar Singh was alleged to have illicit relationship with the wife of the respondent. Upon knowing said fact, the respondent had come to nurse ill-will towards the deceased Hoshiyar Singh which resulted in straining the relationship between the two making the respondent on look out for an opportunity to give vent to his feeling of vengeance.

7. As per said version, on coming to learn that on 23.10.2005 that the deceased Hoshiyar Singh was sleeping along with prosecution witness PW-1 Mohinder Singh on the roof top of residential house of prosecution witness PW-12 Prabhat Singh, the respondent had gone to the house of the prosecution witness PW-2 Narain Singh in search of weapon of offence i.e., Kulhari on the pretext of making sticks which was given by said PW-2 Narain Singh found from the heap of firewood lying in the verandah of adjoining house of PW-12 Prabhat Singh. Upon getting said kulhari, the respondent had gone away to carry out the act of putting the deceased Hoshiyar Singh to death by inflicting Kulhari blow on the left side of his forehead while a deceased Hoshiyar Singh and PW-1 Mohinder Singh were lying asleep on the roof top of the house of PW-12 Prabhat Singh. A blow of Kulhari being so strong that the axe part of the Kulhari had stayed struck in forehead of the deceased Hoshiyar Singh.

8. To set up the aforesaid version of the crime, the IO had proceeded on examination of the witnesses under Section 161 Cr.P.C. The chronology in which the IO had come to examine the witnesses acquainted with the crime occurrence is that on 24.10.2005 and 25.10.2005 PW-7 Prithvi Raj was examined by the IO. PW-8 Sansar Singh was examined on 24.10.2005 and 27.10.2005, PW-12 Prabhat Singh was examined on 24.10.2005 and 12.11.2005, PW-9 Lehar Singh on 24.10.2005, PW-13 Jagdish Singh on 24.10.2005, PW-4 Dev Raj on 24.10.2005, 25.10.2005 and 27.10.2005, PW-11 Rattan Singh on 24.10.2005 and 25.10.2005, PW-10 Chander Prakash on 24.10.2005, PW-2 Narain Singh on 27.10.2005, PW-1 Mohinder Singh on 27.10.2005, PW-5 Gulab Singh on 28.10.2005, PW-6 Om Parkash on 28.10.2005. The mentioning of dates of examination i