REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.700 OF 2006 SHABIR AHMED TELI … APPELLANT VERSUS STATE OF JAMMU & KASHMIR … RESPONDENT

J U D GM E N T

Aftab Alam,J

1. This appeal by special leave is directed against the judgment and order dated October 16, 2003 passed by the Jammu & Kashmir High Court in Criminal Appeal No.4 of 2002 with criminal reference No.27 of 2002. By the impugned judgment, the High Court dismissed the appellant’s appeal and affirmed the judgment and order passed by the trial court by which the appellant was convicted under section

302 of the Ranbir Penal Code and sentenced to undergo life imprisonment.

2. According to the prosecution case, on August 6, 1997, at about 8:30 P.M. one Gani Shah (the deceased) was returning to his house after offering the ‘Isha’ (late evening) prayers at the local mosque in village Magray-pora of tehsil Anantnag. The appellant intercepted him in the lane, at a spot just outside the kitchen of the house of the deceased and taking aim at him fired several shots from the gun, which he was carrying. Gani Shah, hit by the gunshots fell down dead on the spot. His wife and son and some neighbours who gathered at the place of occurrence lifted him physically and took him inside the house. It is further the case of the prosecution that the appellant wanted to marry the younger daughter of Gani Shah, namely, Lovely. But the proposal for marriage sent by him was rejected both by Gani Shah and Lovely and it was in retribution of the rejection of his marriage proposal that he killed Gani Shah.

3. Apparently, no one from the victim’s family went to the police to report the matter. On the following morning, i.e., on August 7, 1997, the village Chowkidar, Ghulam Rasool Shah learnt that Gani Shah had been killed. Then, he along with the village Numberdar, Mohd. Ahsan Dar went to the police station at Achabal and reported the matter there at 8:15 A.M. In the report, he simply stated that on August 6, 1997, at 8:30 P.M. one Gani Shah, son of Gh. Mohd. Shah, while he was coming to his house from the mosque after offering the ‘Isha namaz’, was attacked with gunfire by unknown gunmen outside his own kitchen and he died on the spot. He also made it clear that neither he nor the Numberdar had witnessed the occurrence; that they had only heard that one Gani Shah was killed by unidentified gunmen by gunshots fired from an automatic weapon, the previous evening after the ‘Isha Namaz’. The information given by the Chowkidar was reduced to writing by the SHO and was registered as FIR No.21/1997 of Police Station Achabal.

4. The police after investigation submitted charge-sheet against the appellant following which the case was committed to the court of sessions where the appellant was charged for commission of offences under sections 302/341/201 RPC read with sections 7/25 of the Arms Act. The appellant pleaded not guilty and the case was set for prosecution evidence. At that stage, the public prosecutor filed an application for further investigation of the case under section 170(8) of the Code of Criminal Procedure. The court allowed the prayer and on further investigation the police submitted a supplementary report, this time naming three others Mansoor Ahmad Wagey, Nasir Ahmad Hajam and Shabir Ahmad Hajam, also as accused. The newly added accused were charged for commission of offences under sections 302/341/201/109 RPC and 7/25 of the Arms Act.

5. At the conclusion of the trial, however, the trial court acquitted the three other accused who were named in the supplementary charge-sheet but held and found the appellant guilty of committing murder of Gani Shah. It, accordingly, convicted and sentenced the accused, as noted above, by judgment and order dated August 23, 2002/September 21, 2002. As the sentence awarded to the appellant was life imprisonment, the trial court made a reference to the High Court for confirmation under section 374 of the Code of Criminal P