IMPORTANT POINT : : (1) Absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of accused.
(2) Circumstance of last seen together does not by itself and necessarily lead to inference that it was accused who committed crime.

JUDGMENT :

Rajnesh Oswal, J.

1. The judgment dated 29.01.2021 passed by the court of learned Principal Sessions Judge, Poonch (hereinafter to be referred as the trial court), whereby the appellant has been convicted for commission of offence under sections 304-I RPC and 27/30 Indian Arms Act, along with the order dated 30.01.2021 by virtue of which the appellant has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- for commission of offence under section 304-I RPC and further rigorous imprisonment for five years and also to pay a fine of Rs. 5,000/- for the commission of offence under section 27 of the Indian Arms Act, is the subject matter of appeal filed by the appellant-Sarwar Khan. An acquittal appeal has also been filed by the Union Territory of the Jammu and Kashmir bearing Crl A (AD) No. 10/2022 against the acquittal of the appellant of the charge under section 302 RPC. The brother and mother of the deceased have also filed a revision petition bearing Crl R No. 13/2022 against the aforesaid judgment and prayer has been made for convicting the appellant for commission of offence under section 302 RPC.

2. The judgment has been impugned by the appellant/accused on the ground that there was no cogent evidence regarding the commission of offence against him and further that there was no link connecting the appellant with the commission of offences.

3. In the acquittal appeal and revision petition, the contention of the appellant-Union Territory of Jammu and Kashmir and mother & brother of the deceased is that the appellant was required to be punished for commission of offence under Section 302 RPC instead of 304-I RPC and further that the appellant was required to be sentenced with death penalty

4. Contentions of Appellant:

Mr. Abhinav Sharma, learned senior counsel assisted by Mr. Muzaffar Iqbal Khan representing appellant/accused has vehemently argued that the case of the prosecution was based upon circumstantial evidence and the prosecution has miserably failed to establish that the appellant had killed the deceased by firing from the 12 Bore Rifle and the prosecution also could not prove the motive behind the killing of the deceased. He further argued that even if, it is assumed that the deceased was killed with the gunshot of the appellant, even then the prosecution has not been able to demonstrate that the appellant had either any intention to kill the deceased or cause such bodily injury, which in the ordinary course of circumstances, would have led to the death of the deceased. He also laid stress that the complete chain of the circumstances as projected by the prosecution during the trial could not be proved by the prosecution, as such, the appellant could not have been convicted even for commission of offence under section 304 Part-1 RPC. He also submitted that the prosecution is required to prove its case beyond reasonable doubt and the prosecution cannot derive any benefit out of the weakness of the defence of the appellant. Learned counsels for the appellant has relied upon the judgments of Apex Court in Shivaji Chintappa Patil v. State of Maharashtra, (2021) 5 SCC 626 and Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.

5. Contentions of U.T of Jammu & Kashmir as well as Mother& Brother of the deceased:

Per contra, Mr. Adarsh Bhagat, learned Government Advocate representing Union Territory of Jammu and Kashmir has vehemently argued that no doubt there was no eye witness to the occurrence in the instant case but nonetheless, the onus to establish before the trial court as to under what circumstances the deceased sustained gunshot injury was upon the appellant, once the prosecution discharged its initial burden of proving that the appellant and deceased had gone together to Forest for hunting and thereafter the dead body of the deceased was found in the forest having gunshot injury from the gun of the appellant.

6. Mr. A. P. Singh, learned counsel appeari