JUDGMENT :

Mohan Lal, J.

1. Instant Criminal Conviction Appeal is directed by the appellant against the judgment of conviction and order of sentence dated 26.06.2016& 29.06.2016 rendered by the court of Ld. Pr. Sessions Judge Kulgam in file No. 75/S titled State V/s Ab. Hamid Teeli, whereby, appellant has been convicted and sentenced in FIR No. 18/2002 of Police Station D.H. Pora (i) to undergo life imprisonment and fine of Rs.20000/- u/s 302 RPC and in default of payment of fine to further undergo imprisonment for six months, (ii) to undergo imprisonment for 3 years u/s 452 RPC, and (iii) to undergo 5 (five) years imprisonment and fine of Rs.1000/- u/s 7/25 ARMS ACT for commission of offence of murder of one Nazir Ahmed Wagay @ Galwan. The trial judge has also made a reference being Cr. Ref. No. 4/2016 to this court under the provisions of Section 374 of the Code of Criminal Procedure 1973 for confirmation of the sentences.

2. Aggrieved of, and dissatisfied with the impugned judgment of conviction and order of sentence, appellant/convict has questioned their legality, propriety and correctness and has sought their setting aside on the following grounds:-

(i) that the Ld. Trial Court has acted mechanically, and if the prosecution is taken to be 100% correct, still no offence u/s 302 RPC is made out against appellant, the doctrine of double jeopardy has been violated and virtually retrial has taken place whereby accused has been prejudiced by long delay of 5 years which is violative of Article 21 of the Constitution of India;

(ii) that as per the evidence of PW-3 Mst. Rehmati (m/o deceased) & PW-4 Mst. Rafiqa (wd/o deceased) when their family members including children and others persons were taking lunch in their house on 22.02.2002 on Friday, accused came inside the house in Kitchen at 12.45 pm and started firing on deceased whereby deceased died on spot and Rafiq sustained injuries, accused fired more than 200 bullets but one injury in the stomach leading to bursting of intestine caused death of deceased, however no empties were recovered or sent to FSL, no bullet was recovered from the body which makes the prosecution case highly doubtful and concocted;

(iii) that only one injury to the kidneys resulted in hemorrhage, therefore, offence u/s 304-part (1) or Section 326 RPC is made out, and no offence u/s 302 RPC is proved against the accused;

(iv) that as per prosecution witnesses the deceased was shot from a distance of 2 feet, yet there was no tattooing or any burn injury nor was the wound at entry or exit;

(v) that the Ld. Trial Judge has totally ignored the prosecution statement of PW-8 Dr. Mohd Yousaf who has stated that there was only super facial injury near neck and there was a wound of entry on pericumbical region with exit through right renal area, intestines bursted out and bullet injury on right hand near thumb, but one injury in the stomach leading to bursting of intestine shows that the intention was only to cause an injury likely to cause the death, therefore, the crime committed by appellant/convict only falls under the purview of section 304- Part (1) and not 302 RPC;

3. Sh. S.T. Hussain Sr. Advocate appearing for appellant/convict in addition to his oral arguments, has also submitted the written arguments and has sought the acquittal of appellant/convict on the following counts:-

(i) It is argued, that the prosecution has examined 3 eye witnesses namely, PW-1 Ab. Salam Wagay, PW-2 Mst. Rehmati & PW-4 Mst. Rafiqa; out of