Gul Lone and Others vs State of J. and K.

O.P. Sharma, J.—Gul Lone, Nazir and Bashir Palla are the appellants. While Gul Lone has been convicted u/s 304, Part-I, RPC and

sentenced to imprisonment for seven years by the Sessions Judge, Pulwama by judgment dated 30-8-1986. He and the other two appellants were

also convicted u/s 324/34, RPC and sentenced to imprisonment for 2 1/2 years. The genesis of the occurrence is possession of the land which

Mst. Saja had inherited from her father. Appellant Gul Lone is her son from her marriage with Ama Lone. After the death of Ama Lone she

contracted second marriage with P.W. Ghulam Hassan Lone. A son by the name of Nissar Ahmed was born to her from this marriage. After her

death mutation of the land owned by Mst. Gaja was attested in favour of the appellant Gul Lone and Nissar Ahmed vide mutation No. 332 of

village Kathu Pallen, Tehsil Shopian. It appears PW Ghulam Hassan Lone was not prepared to share the property with Gul Lone A-1 who as son

of Mst. Gaja from her previous husband is entitled to half share in her property. On his application the Naib-Tehsildar, Shopian attested mutation

No. 394 holding Nissar Ahmad in possession in Kharif 1971 through his father P.W. Hassan Lone. By this mutation proprietory right of Gul Lone

A-1 was extinguished u/s 4 of the Agrarian Reforms Act, 1976.

This order passed by the Naib-Tehsildar was challenged by A-1 in appeal which was pending disposal before the Joint-Agrarian Commissioner at

the time of occurrence. It is also admitted that operation of the mutation No. 394 had been stayed by the appellate authority till the disposal of the

appeal. It is also admitted by PW. Hassan Lone that his son Nissar Ahmad had died few days before the occurrence.

The facts emerging from the prosecution evidence are that on 3-6-1984 while PWs. Hassan Lone, Shaban Lone, Gulla Lone and Jabar Lone

deceased were going to the land covered by mutation No. 394, they were attacked by the accused party in order to prevent them from entering

the land. The accused party comprising eight persons were armed with sticks (Lathis) and axes'. While A-1 gave an axe blow on the head of Jabar

Lone deceased A-2 Bashir Palla struck PW. Shaban Lone on his head. The accused party,is also stated to have pelted stones. This is the earliest

version of the occurrence as found in the First Information Report (Ex. P.W. 16/1) which was lodged immediately after the occurrence by PW.

Hassan Lone who was accompanied not only by PWs. v Shaban Lone and Gulla Lone besides the deceased Jabar Lone who was still alive. It is

only in their statements recorded u/s 161, Cr. P.C. that a different shape was given to the prosecution story. This shape was given to show that

original of the occurrence was altercation between Mst. Gulshana who was collecting water from the village public water tap and it was she who

instigated the accused party leading to the occurrence. However, this attempt appears to have been made to shift the place of occurrence from the

dispute land to village street in which the prosecution has miserably failed as shall be presently noticed. The prosecution however, found that while

Gul Lone and Nazir Palla were guilty of committing murder the others were guilty of the offence of wrongful restraint as members of unlawful

assembly. So while A-1 and A-2 were charged u/s 302/324/34, RPC, remaining six accused were tried on charges punishable u/s 147/341/337

read with Section 149, RPC and the trial Court agreed with this conclusion while framing the charge by segregating the incident into two parts.

However, the order of framing charge was not challenged by the prosecution as such it has become final and no fault could be found with it at this

stage. Similarly, there is no appeal against the order of acquittal either and rightly so because on the admitted facts of the case filing of acquittal

appeal would have been an exercise in futility. On the admitted facts of the case it appears that segregation of the occurrence into two parts has

advanced the cause of justice because if charge of murder had been framed against all of them, innocent persons would have faced trial without

being released on bail. Such a course would have compounded the suffering of those who have been found innocent. The framing of the charge is

an important event in the trial of a case and a criminal Court should be aware of the consequence of the omission if mandate of Sections 34 and

Ranbir Penal Code is not enforced while doing so. There has been lack of appreciation of this aspect of the case while framing the charge u/s

149, RPC for the commission of other offences. Be that as it may this has not caused any miscarriage of justice.

3-5. Another fallacy from which the judgment suffers is that even though charge u/s 302 read with Section 324, RPC was framed only against

appellants Nos. 1 and 2, the trial Court while convicting appellant No. 1 u/s 304, Part I convicted all the appellants u/s 324 with the aid of Section

34, RPC. How the charge of murder was independent from the charge of causing voluntary hurt has not been explained. This is evident from para

60 of the judgment which is reproduced below :-

60, The last point for consideration as to what offences are committed by the accused : For determining as to what offences are committed by the

accused, the question arises for consideration is as to what part was played by each of the accused in inflicting or causing injuries to the injured

Shaban Lone (PW. 2) and the deceased Jabar Lone. As indicated earlier all the prosecution witnesses viz. to day PWs. 1 to 7 have with one voice

deposed that when Shaban Lone (PW. 2) advised accused Mst. Gulshana and his daughter-in-law Mst. Nagina to go to their respective houses,

Mst. Gulshana the accused went to her house, latter on accused Gulla, Nazir and Bashir arrived on the spot, dragged Shaban Lone (PW. 2) and

accused Bashir inflicted head injury on his head with an axe. This ocular evidence of the said witnesses is corroborated by the Medical witness Dr.

Ghulam Qadir (PW. 15) who has on examination of the persons of said Shaban Lone detected an incised wound on his head, with respect to

which he has opined that the injury was simple in nature, could be caused by a sharp weapon and such types of injury can be caused by an axe

also. Reading this medical evidence with the ocular evidence of the PWs. 1 to 7 it can be reasonably concluded that accused Ghulla Lone, Bashir

and Nazir arrived on spot with a pre-arranged plan to assault PW. Shaban Lone, belaboured him and accused Bashir in furtherance of common

intentions inflicted an incised wound on his head with an axe. Therefore, an offence punishable u/s 324, RPC is brought home to accused No. 3

Bashir Palla and offence punishable u/s 324 read with the aid of Section 34, RPC is brought home to accused Ghulla Lone and Nazir Palla

(accused Nos. 1 and 3).

From the above it is clear that the trial Court has concluded (1) that all the three appellants reached to the place of occurrence at the instance of

accused Mst. Gulshana (ii) that they dragged Shaban Lone PW. 2 (iii) Appellant Bashir Palla struck on the head of PW-2 by an axe resulting in an

incised simple injury (iv) that all the three appellants reached on spot with the common intention to assault PW. Shaban Lone and appellant-3 in

furtherance of the common intention struck him on the head with an axe (v) that all of them were guilty of causing voluntary hurt to PW Shaban

Lone and were thus guilty u/s 324/34, RPC. Regarding the charge of murder the conclusion of the trial Court is as follows :-

The next point of consideration is what was the part played by the accused persons in inflicting injury to the deceased Jabar Lone as a result of

which he succumbed and died in Hospital.

As indicated earlier that it is in the evidence of P.W. 1 Hassan Lone, Ahad Lone PW. 3, Ghulla Lone PW. 4, Ghulam Ganai PW. 6 and PW.

Ab. Gani Lone (PW. 7) that on seeing his father Shaban Lone felled injured on the spot, the deceased Jabar Lone his son went to remove him

from the spot and as per the evidence of PWs. 1, 3 and 4 that when he bent for removing his father from the spot the accused namely Ghulla Lone

struck his head with a lathi and other accused Nazir and Bashir belaboured him with the lathis. From the evidence of the aforewitnesses this can be

safely concluded that the accused Ghulla Lone without premeditation and in a span of moment, no sooner deceased Jabar arrived on the spot and

bent to remove his father, struck his head with a lathi as a result he sustained an internal injury and fell on the ground and finally succumbed to the

said injury and died on the following day 4-6-1984 in Sher-i-Kashmir Institute of Medical Science, Srinagar.

It is thus clear that all the three appellants had rained blows on the deceased Zabar Lone. Despite this conclusion, the trial Court acquitted

appellants No. 2 and 3 of the charge of murder while convicting A-1 u/s 304 part-flr RPC. This is negation of the principle of common intention

envisaged by Section 34, *RPC because having held that all the three appellants reached the place of occurrence with pre-determined mind to

assault the prosecution witnesses and having also concluded that all the three assaulted the deceased with lathis, there was no ground to exonerate

the two. Section 34, RPC makes each one of the accused liable for the offence with common intention irrespective of the part played by him

provided common intention is established. Recently their lordships of the Supreme Court in Jaswant Singh Vs. State of Haryana, while reiterating

the law had laid down as under :

We have found such demonstrable perversity in the decision of the High Court, particularly in its appreciation and application of the provisions

of Sections 34 and 149, IPC.

Both sections deal with the vicarious liability of an accused for an offence committed by another. u/s 34, IPC :

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same

manner as if it were done by him alone.

Similarly Section 149, IPC provides for the guilt of every member of an unlawful assembly if in prosecution of a common object an offence is

committed, or '.which the 'numbers know would be likely to be committed in prosecution of that object.

The similarity of the sections lies in the requirement of a common object or intention or a prearranged plan in further ance of which the act is

done. The difference lies in the degree of actual participation required in the criminal enterprise. The nature of participation u/s 34, IPC has been

considered in the case of Ramaswami Ayyangar and Others Vs. State of Tamil Nadu, at page 1567 of Cri LJ (SCC para 12) :

Section 34 is to be read along with the preceding Section 33 which makes it clear that the 'act' spoken of in Section 84 includes a series of acts as

a single act. It follows that the words 'when a criminal act is done by several persons' in Section 34 may be construed to mean 'when criminal acts

are done by several persons'. The acts committed by different confederates in the criminal action may be different but all must in one way or the

other participate and engage in the criminal enterprise, for instance, one way only stand guard to prevent any person coming to the relief of the

victim, or may otherwise facilitate the execution of the common design. Such a person also commits an 'act' as much as his co-participants actually

committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the

person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of

facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the

other facilitate the execution of the common design, is itself tantamount to actual participation in the 'criminal act'. The essence of Section 34 is

simultaneous in consensus of the minds of persons participating in the criminal action to being about a particular result.

The emphasis is on physical presence and promotion or facilitation of the crime.

As far as Section 149, IPC is concerned, in addition to the common object, merely being a member of an unlawful assembly within the

meaning of Section 141 IPC may be sufficient.

The trial Court has thus committed a grave error in acquitting the appellants No. 2 and 3 of the charge for which appellant-1 has been convicted

as all of them had committed the offence together. The problem it appears arose that appellant-3 was not charged u/s 302, RPC which is another

illegality committed by the trial Court while framing the charge. Be that as it may, the State has not filed any appeal against the order of acquittal in

the absence of which it is not a fit case to take suo motu notice because this appeal is to be allowed on either ground.

As noticed above, there was a dispute about the possession of land as both sides asserted its possession on the land which under the mutation

of which was rightly attested in favour of A-1 Gul Lone and late Nissar Ahmad both sons of Mst. Saja one each from her two husbands. It was

however, admitted by Hassan Lone (PW. 1) that in the revenue record appellant-1 was recorded in possession, but this was corrected by the

Naib Tehsildar in favour of his son Nissar Ahmad. He also admitted that the order of ""Sehat Indraj"" passed by the Naib Tehsildar had been stayed

by the Joint Agrarian Reforms Commisioner in appeal filed by A-l. If that be so as it really is, the original position as it stood by virtue of mutation

No. 332 existed on the date of the occurrence. In case A-1 was in possession along with Nissar Ahmad. It is admitted case of the prosecution that

Nissar Ahmad is dead. But according to PW. Hassan Lone he has been cultivating the land of Mst. Saja for more than 20 years on behalf of his

son Nissar, Ahmad, but this fact was not reflected in the revenue record. The prosecution has suppressed the revenue record evidencing who was

in actual possession. Oral evidence of possession of Nissar. Ahmad is not supported by revenue record, but the order of ""Sehat Indraj"" is itself

proof of the fact that A-1 was recorded in possession of the land. Since the prosecution has suppressed this fact adverse inference is to be drawn

against it. Moreover, in his statement u/s 342, Cr. P.C. the appellant has clearly stated that he was in possession of the land of her mother and the

prosecution party tried to dispossess him forcibly which he resisted. It is also his statement that the accused party also sustained injuries.

Since there is no reliable evidence as to whether the prosecution or the accused party were in actual possession of the land, the question arises

who was the assailant and which is the actual place of occurrence. The police has produced the challan against eight persons including Mst.

Gulshana and Mst. Fata. It is in the statement of PW Hassan Lone that when the prosecution party comprising four persons was proceeding

towards the dispute land Mst. Gulshana started abusing them. She was told by one of them not to do so and she immediately went : home and

returned with the appellants and other four accused and the assault, started. But the fact that Mst. Fata wife of one of the accused and appellant-2

also sustained injuries in the course of occurrence has been suppressed. It is in the statement of Doctor Ghulam Qadir Sofi that he found an incised

wound on the forehead of Mst. Fata which was 1 1/2"" long and 2 cm deep. He also stated that Bashir Ahmad Palla was also examined by him. He

had swelling in the right elbow joint with lacerated wound besides an injured thigh. The injury statements EXD-1 and EXD-2 were prepared by the

police on 3-6-1984 itself along with those of the deceased and PW Shaban Lone and Gul Lone. So they have also sustained injuries at the time of

occurrence. This fact was, however, suppressed by the Police because these injury statements were not placed on record by the police. Although

police had found that from the injury statements offence u/s 324/34, IPC appears to have been committed, but no further action was taken. This

apart, the FIR is said to have been registered on the date of occurrence and the PW Inspector B.L. Pandita being the SHO reached on spot on

the next day. But as per PW ASI Rashid Ahmed, the accused persons were arrested by him only on 27-6-1984. Why they were not arrested by

the then SHO Shri Pandita on the date he visited the place of occurrence has not been explained. There is no allegation that they were absconding.

This failure reveals less but conceals more. Moreover, while the witnesses have deposed that the deceased was struck by an axe, the finding of the

trial Court is that he was hit by a lathi. It is also in the statement of prosecution witnesses that the accused party left the axes on spot which they

collected and carried to the police station. If the axes were not used as found by the trial Court the obvious inference would be prosecution party

was armed with them as these were produced by them

prosecution case therefore, suffers from the following infirmities:-

(i) That the bone of contention between theparties is the possession of the land comprising survey Nos. 31, 32, 34, 36. 48, 341 and 188 of village

Katho Halen which was inherited by A-1 and Nissar Ahmad son of PW Hassan Lone from their mother. There is no evidence that land was in

possession of PW Hassan Lone as claimed.

(ii) The prosecution had not explained the injuries suffered by two of the accused persons even though they were got medically examined by the

Investigating Officer on the date of occurrence itself.

(iii) that the delay in making arrest of the accused from 4th to 27th June 1984 has not been explained. Delay in making arrest raises an inference

that the police was not sure who in fact was the assailant and possession of the land. Appellants in their statements recorded u/s 342, Cr. P.C.

have stated that the prosecution party wanted to dispossess them from the land on the basis of order of ""Sehat Indraj"" made by the Tehsildar. This

order, however, was stayed on appeal. Despite this, the prosetution party in order to usurp this land assaulted them. In this Mst. Fata and Nassir

Palla accused were injured. They reported the matter to police, but no action was taken.

It is thus a case gensis of which though suppressed by the prosecution surfaced from the statements of the accused.

In State of Himachal Pradesh Vs. Wazir Chand and Others, it was held that (at page 354 of Cri LJ) :-

Where the commencement or genesis of the occurrence is not available because there was no witness to the occurrence available, the only

direct version of the commencement of the occurrence would be found in the statement of the accused if he chooses to give out his version of the

occurrence. His statement has to be considered in the light of the evidence adduced by the prosecution and weighing his statement with the

probabilities of the case either in his favour or against him.

This statement of the accused finds support from the fact that two of the accused persons were injured in the course of occurrence. Their

statements also indicate that actual dispute is with regard to the possession of land which appellant No. 1 had inherited from her mother along with

Nissar Ahmed. However, this Nissar Ahad according to the Patwari is dead. Since the prosecution has suppressed the fact that some of the

accused were also injured, the inference would be that the genesis of the occurrence have been suppressed. The Supreme Court in Lakshmi Singh

and Others Vs. State of Bihar, while dealing with the similar question observed as under (at page 1742 of Cri LJ) :-

It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the

course of altercation is a very important circumstance from which the Court can draw the following inferences :

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore,

their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on

the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater impor-tance where the

evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the

prosecution one.

The only exception to this is that the injury should not be superficial. But an incised wound on the forehead which was bleeding is not a superficial

injury. An incised wound can be caused only by a sharp edged weapon. This shows that the accused party was armed with sharp edged weapons

and the statement of PW-2 that the appellants left the axes on spot which were collected by them indicates that as a matter of fact the prosecution

party was armed with lethal weapons. It is, thus clear that the genesis of the occurrence have been suppressed by the prosecution. In all

probabilities, the prosecution party was the assailants and the appellants acted only in self defence when one of the appellants and his wife were

assaulted. This inference can be drawn from yet another circumstance also. According to PW Hassan Lone, he married Mst. Saja some time after

1965 and 1970. She died 3/4 years after the marriage. Obviously she was alive in 1971. Nissar Ahmad his son born out of Mst. Saja died about

three or four days before the occurrence. He was unable to give his age despite specific question whether he died at the age of 12 or 15. So the

witness had tried to bide real facts. What is intriguing is that prosecution placed on record copy of Girdawari only for the year 1984. In this also,

Mst. Saja and his sister are recorded as owners in possession along with other co-owners. So they have suppressed subsequent entries. But

mutation No. 394 was attested to record Nissar Ahmed in possession of the land in Kharif 1971 through his father. But if Saja was alive in 1971

he could not be recorded in possession in Kharif 1971. Attestation of mutation No. 394, therefore, was a crude attempt made by Hassan Lone in

connivance with the Naib Tehsildar to divest appellant- 1 of his right to hold 1/2 share in the property of his mother. Not only this, Naib Tehsildar

ignored the mandate of definition of personal cultivation given in Section 2(12) in terms of which cultivation by brothers includes cultivation by all

the brothers. Another intriguing circumstance of the prosecution's the case is that the number of members of prosecution party who decided to

enter the land and that too within four days from the death of Nissar Ahmad. All these facts lead to the only conclusion that the prosecution has

suppressed the genesis of the occurrence. The prosecution case thus bristles with improbabilities. I am therefore, of the opinion that the appellants

have been wrongly convicted by the trial Court. The appeal is, therefore, allowed and the appellants are acquitted.