JUDGMENT

Rajesh Sekhri, J. - Challenge in this Acquittal Appeal has been thrown to the judgment dated 18.10.2012 passed by the learned Principal Sessions Judge, Kishtwar (hereinafter referred to as 'trial court') in File No. 13/Sessions vide FIR No. 88/2002 of Police Station Kishtwar for offence under Section 302 of the RANBIR PENAL CODE , 1989 (RPC for short), vide which respondent has been acquitted of the charges.

2. Shorn of verbosity, the prosecution case is that on 17.06.2002 ASI Jagdish Raj, Officer Incharge of Police Post Shalimar, who had been deputed with pilgrimage of Sader Mata, reported back in the Police Station, Kishtwar that during the pilgrimage duty, when he along with STF and VDC were returning from Shandri and reached at Hing Dhar Kuntwara, some un-known militants resorted to indiscriminate firing, which was retaliated by the police party and during the cross firing two VDC members and two civilians were killed on the spot and when they reached at Akra, they found dead body of Ahmed Ullah s/o. Abdul Gani Butt R/o. Nag Bhatna, an employee of PHE, who was shot dead by SPO Bansi Lal No. 20606 with service SLR.

3. On receipt of this report, FIR came to be registered for offences under Sections 3 02 of the RANBIR PENAL CODE , 1989 (RPC for short) and 7/27 of the ARMS ACT (A. Act for short) and investigation came to be vogue. During investigation, the investigating agency took the dead body in its custody, got postmortem conducted, seized clothes of the deceased, arrested the accused, recovered and seized one SLR rifle along with magazines from the respondent/accused. The weapon of offence was sealed and sent for chemical examination to FSL. The reports of FSL and the postmortem were obtained, statements of the witnesses were recorded u/s. 161 Cr.P.C.

4. It surfaced during investigation that on 14.06.2002 the pilgrimage commenced from Bhandera to Shandri temple and accused was deputed with the pilgrimage by Incharge STF Post Bhatkoot and the accused had been directed to report back after the pilgrimage. That on 15.06.2002, on the culmination of the pilgrimage from Shandri to Bhandera, the STF personnel went back to Bhatkoot Camp, but accused accompanied the pilgrimage to Bandera without permission and when they reached Hing Dhar, militants blasted an IED planted by them and opened indiscriminate firing, which was retaliated by the police party and militants succeeded to fled away. Three pilgrims and two VDC members died in the firing of the militants. Accused ran from the spot firing with his official SLR and on reaching at Akra village at a distance of about 6 kms, he shot Ahmed Ullah Butt a PHE employee dead, who was there on his duty. It has been alleged that the deceased was known to accused and the accused had intentionally shot him dead. On the completion of the investigation, final report in terms of Section 173 Cr.P.C was laid in the court of learned JMIC, Kishtwar, wherefrom the same was committed to the trial court.

5. The respondent was charged by the trial court for offence u/s. 302 RPC, whereby he pleaded innocence and claimed trial and as a consequence whereof the prosecution was directed to adduce evidence in support of the charge. On closure of the prosecution evidence, the respondent was examined u/s. 342 of the Code of Criminal Procedure, 1989 (Cr.P.C for short), who denied the incriminating evidence against him stating that he had been falsely implicated on the basis of enmity. Since the accused was not acquitted u/s. 273 Cr.P.C, he preferred to enter