JUDGMENT
Syed Bashir-ud-din, J.
1. Accused (appellant and respondents of the two appeals) were tried under Section 302, 148, 447 and 149 IPC in the court of 3rd AdditionalDistrict and session Judge, Srinagar on charges on murder, criminal trespass ans roiting resulting in death of Abdul Rashid Bhat son of the complainant at Bugam. Accused Bashir Ahmed Mir was convicted after being found guilty of having caused death of Abdul Rashid Bhat with the Knowledge that his act of hiting deceased’s head with ‘yatferi’ was likely to cause death and sentenced under Section 304(2) RPC to six years rigrious imprisonment and fine of Rs. 2000/- (in default to further undergo 40 days simple imprisonment). All other accuseds were acquitted. This order of conviction/ acquittal dated 23.7.98 and order of sentence dated 24.7.98 are under challange in these appeals. The convicted accused Bashir Ahmed Mir has challanged his conviction and sentence, as above and the State Government has appealed against acquittal of the other accused.
2. This challange is to the common judgement of acquittal and conviction and order of sentence. The matter is heard and this appellate court judgement shall govern both the appeals as common question of fact and law arise in these appeals.
3. Succeinetly put the prosecution case is that on 9.8.96 the complainant Ahad Bhat PW1 and his sons noticed on site that ‘darrah’ (A small bund on the stream to divert water for irrigation) situated at Nasarpora had been fiddled with and dismantled by some family members of accused Mohd. Mir. provoked complainant’s son deceased Abdul Rashid abused the accused and wanted to know the reasons for interference on their part with the ‘darrah’. This he did in the hearing of one Mst Zaina, wife of accused Bashir Ahmed Mir who rushed forward and caught hold of the complainant’s neck. However, the complainant expressed regretes and pacified her. The other accused, menfolk of the house-hold did not take it lyingly. They forced their entry into the complainant house, while armed with ‘yatferi’ ‘Levon’ and ‘dandas’. Accused Bashir Mir dealt fatal blow with ‘yatferi’ he was holding in his hands on the head of the Abdul Rashid while accused Nazir Ahmed struck him with ‘Levan’ and yet other accused beat him with ‘dandas’. He fell down unconcious. He was carried to police post Khag, where from after complainant filed report he was carried for treatment to Hospital at Khag. The Police Chowki Khag while diarising report requested Police Station Beerwah for registration of FIR. The injured a
for non-availibility of the Doctor at Khag health centre was referred to SKIMS, Soura. The injured though treated and operated in the SKIMS Soura ultimately sccumbed to the injuries in the night intervening 11/ 12th August 1996. Police seized the dead body. Medical certificate was obtained from SKIMS, Soura. The dead body was brought to Beerwah hospital for autopsy. However, the post-mortem could not be conducted as Doctor nominated for the purpose refused to do so in view of the certificate issued by SKIMS. The spot inspection was conducted and site plan prepared. Statements under Section 161 Cr. P.C were recorded followed by taking other investigative steps. The investigation culminated in sending up accused for trial. The accused were charged under Sections 302, 148, 447 and 149 RPC. Accused pleaded not guilty to the charge and opted to be tried. The 3rd Additional District and Session Judge recorded statements of prosecution witnesses and admitted other evidence. The statements of accused under secton 342 Cr.P.C were also recorded. Accused defence was one of ‘non-guilty’ upon hearing the arguments case ended with judgement and order of conviction and sentence/acquittal as referred earlier.
4. Mr. Gh. Mustaffa, GA submits that the evidence has not been
correctly evaluated and appreciated. The guilt of the accused is proved by the occular evidence. As many as 14 witnesses have deposed against accused. Conviction of accused Bashir Ahmed Mir under Section 304(2)RPC while acquitting the rest of the accused is against the facts, as established on evidence. The occurance and complicity of the accused is proved by oral evidence supported by medical evidence and other circumstances appearing on record. The appreciations of the evidence is faulty. Due weight has not been attached to the evidence tendered by independent witnesses. The common object as also the trespass and roiting on the part of the acquitted accused is established on record. The case has been proved beyond reasonable doubt by the evidence of the quantity and quality warranted under law.
5. In reply Mr. S.T Hussain submits that the trial court has rightly acquitted the accused on proper evaluation and appreciation of the prosecution evidence. But the trial court has erred in its conclusion of convicting and sentencing accused Bashir Ahmed Mir. The circumstance like bilatedly lodging of FIR, absence of medical evidence and taking sufficiently long time to record statements under setion 161 Cr.P.c have been
brushed aside. The evidence has not been properly appreciated. Mere paraphasing of examination-in-chief and portions of cross-examination here and there is not appreciation of evidence, so far as convicted- accused is concerned. The defence stand is that the deceased Abdul Rashid Bhat died of fall and consequent injuries he received on head while dashing against hard surface. This defense has not been considered in proper setting. Besides material particulars and features as pointed out in the statement of witnesses, so far as alleged complicity of the convicted accused in the crime is concerned, too has been left out from consideration. The convicted accused’s offence of culpable homicible not amounting to murder penalised by Section 304(2) R.P.C has not been brought home to the accused and the charge is not proved beyond doubt, the norm laid for sustaining conviction and sentence in a criminal case.
6. In Dr, H.J Dastane v. Mrs S. Dastane (AIR 1975 SC 1534), the standard of proof in criminal trials is stated to be “propf beyond reasonable doubt” in as much as freedom and liberty of subject is involved in a criminal case. See Sawal Dass v. State of Bihar (AIR 1974 SC 778), Sharad Birdhi Chand v. Sarda (AIR 1984 SC 1624), State of U.P v. Krishan Gupta (AIR 1988
SC 2154) and Partap v. State of U.P (AIR 1976 SC 966).
7. Prosecution has examined as many as 14 witnesses. The trial judge after analysis and discussions of the eye witness evidence, afforded by the concerned prosecuting witnesses has come to the conclusion that there is no cogent material to suggest that accused other than Bashir Ahmed Mir holding ‘Yatferi’ were armed with dandas or livon as alleged. No injury by use of force except the one caused by Bashir Ahmed Mir, is proved. This is more so when the injury reported with “farmmazroobi” (EXPW 13/ 1) shows just one single injury on the head of deceased Abdul Rashid. No other injury was found or noted on his person. This improbalizes the prosecution case in as much as, had the accused (numbering six) used force, levion and dandas, deceased would not have received just one injury on his head (caused by Bashir Ahmed Mir by use of ‘yatferi’). Even documentary evidence is not suggesting the use of lathies/ dandas. This allegation is not made even in FIR. (EXPW1). The allegation that the other accuseds beat deceased by dandas is omitted from FIR. Seizer memo is prepared only in respect of alleged ‘levion’ used by one of the accused. Blood stains have not been found on the body of the deceased. The dead body of Abdul Rashid was not even subject
to post-morten examination.
8. Regarding the existence of common object tresspass and roiting, the evidence is wholly lacking. Having regard to the origin of the occurance resulting in death of Abdul Rashid, there is no sufficient and reliable evidence of show that the accused fromed unlawful assembly and theirbeing armed with the deadly weapons. Merely because the accused were on spot, when many other village folk assembled there, would not perse clothe assemblage of the people as unlawful. The evidence is also wanting to show that the common object of the accused allegedly forming assembly was to kill Abdul Rashid or to committ any other offence. The nature of the single injury, received by the deceased when considered in totality and whole evidence does not suggest any common object. The criminal tresspass in this matter is not at all proved. Thus on these conclusions offences under Sections 148,149 and 447 R.P.C are not made out, once the accused cannot be held guilty vacariously for unlawful assemblage and rioting, as alleged, still accused’s accountability is for his/ their individual acts. There is ample evidence to show that it was Bashir Ahmed Mir weilding ‘yatferi’ in his hand, who with the ‘yatferi’ dealt a blow on the head of the deceased,
who fell down unconscious on spot and later on died in SKIMS because of the injury. The graphic description given by the witnesses of the occurance, show that the accused Bashir Ahmed Mir alone is liable for the act of killing the deceased Ab. Rashid Bhat. Occurance just started with exchange of abusive words. Tempers rose. Accused Bashir Ahmed Mir gave single blow to the deceased. These features of the occurance show that the accused did not intend to murder the deceased but instead indulged in perpetrating an act so dangerous as was likely to caused death within the knowledge of the accused. The occurance originating from a triffle developed on the spur of the movement. The existence of intention or common object is totally negated by the evidence admitted in this case. Obviously homicidal act of Bashir Ahmed Mir hiting Ab. Rashid with ‘yatferi’ is within his knowledge and he also knew that the act was likely to cause Abdul Rashid’s death.
9. All these conclusions are fully supported by occular, medical, circumstantial and documentary evidence available on record. The witnesses have one after another deposed in the same vien. The complicity of Bashir Ahmed Mir in the crime as above is fully discernable from evidence on record. The eye witness’s account
on that count shows that culpablity of accused Bashir Ahmed Mir while evidence with regard to other accused is ex-culpatry in nature. The trial judge has taken pains to marshall, scan and analyse evidence. Broadly speaking on a closer look, we find the approach of the trial court is not faulty and the conclusions drawn from the available evidence are possible. The complicity of accused other than Bashir Ahmed Mir is fairly doubtful even without being certain as a mathematically evolved formula with precion.
10. We confirm the order of acquittal of accused, other than Bashir Ahmed Mir and also the order of conviction of Bashir Ahmed Mir under Seciton 304 (2).
11. The question of sentence is to engage our attention for a while. The occurance is of 1996. The trial court sentenced accused to six years rigrious imprisonment and finr of Rs. 2000/- sentence is excessive and dispreportionate to the inculpating act of accused Bashir Ahmed Mir. Notice is taken of the fact that the accused have been undergoing the ordeal of trial and appeal for last so many years. Although he has suffered in body and mind and lived under the shadow of trial and appeal. The accused is also stated by counsel to have undergone over 4 years rigrious imprisoment.
12. Keeping in view these aspects of the case in the totality of the facts and circumstances in which offence was committed, alongwith nature of offence, means and method employed to commit crime, provocation and origion of the incident, a leniant view is to be taken and sentence reduced. In the situation accused over re-acted to the situation and committed the penal act, though without any intention to cause death or such injury which is likely to cause death.
13. In the above extenuating situation and on consideration of the whole facts and circumstances of the case inconjunction with gensis and origin of occurance, nature of the crime committed, the gravity of the offence, means and method employed to cause injury, time that has lapsed since commission of the offence, we are of the opinion that ends of justice would be met if the sentence of punishment awarded is reduced to period already gone which as per defence counsel is over four years. Therefore, we reduced the sentence accordingly, leaving the order of punishment intact in respect of order of payment of fine and the punishment, awarded in default of payment of fine. The period of detention/ imprisonment suffered by the accused Bashir Ahmed Mir in this case is set off against sentence of imprisonment awarded hereto.
14. In result on the aforesaid view of the matter we have taken, acquittal criminal appeal No. 9/98 filed by the State is dismissd and the other Cr. Appeal No. 7/98 filed by the convict-accused Bashir Ahmed Mir is accepted to the estent of indicated modification with regard to sentence of imprisonement awarded to the accused and in no other respect. This appeal also stands dismissed with indicated modification in sentence.