JUDGMENT :

MOHAN LAL, J.

1. Instant Criminal Conviction Appeal is directed by the appellant against the judgment and orders dated 28.11.2011 & 29.11.2011 rendered by the court of Ld. Pr. Sessions Judge Ramban in case titled State vs. Abdul Wahid bearing file No. S.T. No. 07/2004, whereby, appellant has been found guilty, convicted and sentenced to life imprisonment and fine of Rs. 10000/- for commission of offence punishable under section 302 RPC and for rigorous imprisonment for a period of 7 years and fine of Rs. 10000/- for commission of offence punishable under Section 27(2) of Arms Act in case FIR No. 29/2003 of Police Station Banihal.

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

(i) that after framing charges against the appellant on 28.09.2004 who pleaded not guilty to the charges, prosecution examined as many as 13 witnesses including the Doctor and investigating officer (I/O), the evidence adduced by the prosecution in support of his case was so inconsistent, contradictory and incredible that no conviction could be based on that evidence by the trial court against the appellant.

(ii) that out of 13 prosecution witnesses, PWs Ghulam Nabi, Abdul Sattar, Taja Begum, Gull Mohammad, Mohammad Sharief, Ghulam Akbar & Mohammad Yousaf have stated before the trial court that they have no personal knowledge of occurrence; Dr. Sameer Abdullah has deposed about the post-mortem and HC Ram Raj has deposed about investigation of the case; the evidence of PW Khurshid Ahmed (eye witness) and PW- Ghulam Qadir was the only evidence which had to be appreciated by the trial court in its proper and correct perspective; PW Khurshid Ahmed (eye witness) has stated before the trial court that when accused shot at Zarina he came out and raised hue and cry, while Akbar Lone and Qadir came on spot, from the reading of evidence of PW Khurshid Ahmed it is clear that Akbar Lone and Qadir came on spot only when Khurshid raised hue and cry and neither Akbar nor Qadir were present at the time when it is alleged that appellant had fired Zarina.

(iii) that the Doctor produced by the prosecution before the trial court has also not supported the case of prosecution, in his statement doctor has stated that he conducted post-mortem of the deceased and police did not show him any weapon of offence at the time of post-mortem , he has also admitted that he did not given dimension of injuries in the report, he has admitted that duration of injures was 6-72 hours; it is submitted that when the alleged weapon of offence is not shown to doctor and he has not opined about the use of that weapon in the commission of offence, the evidence of doctor is not helpful to the prosecution in proving the guilt of accused, the trial court having not gone into the evidence of doctor in it’s true and correct perspective, therefore, has committed grave error of law in passing the impugned judgment and orders.

(iv) that the prosecution has not produced any expert evidence in the case, police has not seized the gun which had allegedly been used in the commission of crime, the seized empty case of “AK-47 Rifle” had also not been sent for chemical examination, the trial court has passed the impugned judgment without jurisdiction which is liable to be quashed.

(v) that the investigating officer (I/O) had himself stated before the court that he had not got the identification parade of accused conducted as the charge sheet against accused was laid before the trial court u/s 512 Cr.P.C. accused was not arrested by him and two days after the occurrence he came to know that accused had surrendered with army, he tried his best to arrest the accused during investigation, but the army did not handover the accused