Jagan Nath and Others vs State of Jammu & Kashmir

R.C. Gandhi, J.—This Criminal Appeal is directed against the judgment and order dated 31.1.2002 passed by learned Sessions Judge,

Udhampur, whereby appellants have been convicted and sentenced to imprisonment already undergone with fine of Rs. 5000/- each, in default

whereof to undergo imprisonment for six months. However, on realization of the fine amount, Rs. 30,000/- has been directed to be paid as

compensation to complainant Bashir Ahmed.

State has also filed two separate acquittal appeals. Acquittal Appeal No. 14/2002 has been filed against the acquittal of the accused Amar

Nath, whereas Acquittal Appeal No. 3-D/2002 has been filed to convict and sentence the accused for commission of offence u/s 302 RPC

instead of Section 304 Part II R.P.C as ordered by the trial court.

The prosecution story is that on 4.11.1984 at about 9 a.m when the complainant party, who had already constructed a Kulli ( a room having

straw roof), was raising construction of a kotha ( kacha room with clay and timber roof) in the land measuring 37 kanal and 18 marlas bearing

survey No. 300 situated at village Badola, on which land both the parties claim their possession, appellants committed trespass in the land of the

complainant, attacked the complainant party, inflicted injuries to Roshan Din with lathies, as a result thereof he succumbed to the injuries whereas

Bashir Ahmed, Shamas Din and Ghulam Rasool also received injuries in the same incident. Police registered FIR No. 287 of 1984 at 10.15 p.m

and started investigation. Bashir Ahmed, injured was admitted in hospital at Udhampur and the dead body was taken to hospital for postmortem.

Statement of complainant Bashir Ahmed was recorded on 5,11.1984, who stated that land measuring 37 kanal 18 marlas under survey No. 300,

3002/1 and 306, situate at village Badola is the property of his grand-father who has migrated to Pakistan. The disputed land has been kept on his

superdari by the Custodian Evacuee Property (hereafter ""the Custodian"" ) vide his order dated 8.11.1980. He also stated that he is in cultivating

possession of the land and paying Rs. 27/- as annual cess to the Custodian. Before his possession over the land, accused Amar Nath and Kaku

sons of Jagtu were in possession. The Evacuee Property Department evicted them and he, being heir of his grand-father, possession of land has

been handed over to him on Superdari. Dispute with regard to possession is going on between him and Amar Nath and Ors. in the court since 8 to

10 years. On 4.11.1984 at about 12 noon/1 p.m, while he and his father Roshan Din, his wife Nasima, Shamas Din S/O Ghulam Rasool and

Ghulam Rasool S/O Sain residents of Rakwala and Mushtaq Ahmed, Shah Mohd sons of Taj Din, were constructing a Kotha in the land, 11

persons, including the accused, with pre-planed common criminal intention to kill the complainant, trespassed into the land and attacked them.

Complainant Bashir Ahmed, Roshan Din, Shamas Din and Ghulam Rasool, who were present on spot, were assaulted with Tabar and lathies. His

wife Nasima raised noise, on which some residents of the village came on spot and in the meantime the accused ran away. While running away the

accused demolished the Kulli and committed theft by taking away 2 rifles (one double barrel and one single barrel) which the complainant had kept

in it. They also took away 20 blankets, two bed covers, 4 Cults, three pillows, 2 Sabbals (iron rods), one shawal, one ghenti (instrument of digging

clay), one kudal, three draties of sharpe edge, 4 axes, one hammer, one cheni, one hand saw, one steel pot, one lamp, one radio set 2 band sanio

make, one silver kadai, 2 thalies, 4 kolies, 2 glass silver, one Huka (bubble bubble) 4 baskets, one tin, one torch, one packer cartridges, 250 grm

gun powder and six live cartridges. After recording his statement investigation commenced.

During investigating, statements of injured were recorded and on the disclosure statement of accused Mani Ram and Suram Chand, lathies were

recovered. One riffle (Amar-709-76) one riffle cap type-2044-LDR was also recovered from accused Jagat Ram from his house, besides

recovery of other stolen articles. Evidence with regard to the possession of land bearing survey No. 300 was also collected. Statements of

witnesses u/s 161 Cr.P.C were recorded. After observing other formalities, challan was presented against the appellants for alleged commission of

offences under Sections 302/396/307/447/148 and 149 RPC.

The accused were charged sheeted on 30.1.1985, except accused Amar Nath, who was charge sheeted on 21.10.1999. They pleaded not

guilty and were put to trial.

Prosecution examined PWs Bashir Ahmed, Shamas Din, Ghulam Rasool, Mst. Nasima, Mushtaq Ahmed, Shah Mohd, Mohd Din, Abdul Gani,

Paras Ram, Joginder Singh, Mohd Saleem, Assistant Custodian, Ab. Rashid Field Officer, Ali Mohd Patwari, Shri Nawas Gupta Addl. Tehsildar,

Dr. Jai Ram Gupta, Dr. Jatinder Sharma, Mohd Saleem and Shamsher Singh SI, to prove the charges against the appellants.

After recording the prosecution evidence, statements of the accused were recorded u/s 342 Cr.P.C. Accused Amar Nath pleaded that on the

day of occurrence he was on his duty at Leh. Other accused denied the allegations of the prosecution as false and fictitious. They stated that they

have not committed the murder of Roshan Din or inflicted injuries to the prosecution witnesses cited by the prosecution. They further stated that

they were in possession of land bearing survey No. 300 since the time immemorial. The complainant party intended to forcibly dispossess them.

They approached the complainant party and requested them not to interfere or raise any construction in the land in their possession. The

complainant party threatened them of dire consequences and started quarrelling with them and fired gun shots. While the complainant party was

assaulting the accused persons, the construction being raised by them fell down and as a consequence thereof, Roshan Din, Bashir Ahmed,

Shamas Din and Ghulam Rasool received injuries. Roshan Din, who was not immediately looked after, succumbed to the injuries due to the fault of

the complainant party. They also stated that complainant party bears enmity with them over the possession of the land.

After hearing learned Counsel for the parties, appreciating the evidence led by the prosecution and the defence and considering the other

documentary evidence, the trial court convicted and sentenced the accused, except accused Amar Nath, who has been acquitted on the ground of

being on duty at Leh on the day of occurrence,

We have heard the learned Counsel for the parties and perused the record. Learned Counsel for the appellants-accused has drawn our attention

to the statements of the prosecution witnesses and urged that the prosecution has not conducted the investigation of the case properly, rather the

genesis of the occurrence has been suppressed. It is submitted that the complainant party has fired from their guns and that the presence of

accused Amar Nath shown on spot itself demolishes the prosecution story as it has been proved by the defence that he was on duty at Leh on the

day of occurrence, which evidence has been accepted by the trial court and accused Amar Nath has been acquitted. His submission is that the

complainant-party has received injuries because of felling down on them the construction of Kotha which was being raised by them. The Kotha fell

down while they were laying clay on the roof thereof. Deceased Roshan Din died because of the injuries sustained on account of felling down of

the Kotha on him while he was inside the Kotha.

On appreciation of evidence, we find that PW Bashir Ahmed has stated that on 4.11.1984 when he was constructing Kotha in his land, his

wife Nasima, father Roshan Din, nephew Shamas Din, son Mushtaq Ahmed, and Ghulam Rasool, Shah Mohd and Badri Nath were also present

on spot. At about 12 or 1 p.m the accused appeared on spot, equipped with lathies started assaulting them. Roshan Din was lying on a cot near

the Kulli and all the accused attacked him with lathies and inflicted multiple injuries to him as a result of which he died on spot. PWs Ghulam

Rasool and Shamas Din and other witnesses tried to rescue the deceased but the accused attacked them also and inflicted injuries to them. They

raised hue and cry on spot on which accused escaped from the scene of occurrence but before leaving the place of occurrence they demolished

the Kulli and also took away house-hold goods, including two guns and other house-hold items. Report was lodged by one of his relatives with the

police, who recorded his statement EXPWBA. He further stated that he is in possession of land since 1980. In cross examination he stated that

khasra No. 300 measuring 37 kanal 18 marlas belong to his maternal grand father, who migrated to Pakistan in 1947. About 7/8 years prior to

1980, the land was in illegal possession of Amar Nath and Kaku. He has also filed appeal before District Judge, Udhampur. The guns were kept

by them inside the Kulli. He has further stated that PW Ghulam Rasool received injuries on his arms and legs whereas PW Shamas Din sustained

injuries on his head and leg. He also stated that litigation with regard to the and is going on.

PW Shamas Din has stated that Roshan Din was his maternal grand-father. He had gone to his house along with his father Ghulam Rasool. PW

Shah Mohd, his cousin, had also gone to the house of Roshan Din. They were constructing their house. At about 12'O Clock on 4,11.1984 the

accused, who were having lathies with them, attacked Roshan Din, who died on spot. Bashir Ahmed, Shah Mohd, Ghulam Rasool and Badri Nath

tried to rescue Roshan Din but the accused attacked them also. The accused demolished the house and while running away took away various

house-hold items, including two guns and plundered the Kulli constructed by PW Bashir Ahmed. Complainant party took the deceased to the

hospital. In cross-examination, he stated that the guns and other articles were kept by them in the Kulli. He has also stated that complainant party

has not fired any shot. When he was confronted by the defence that he has stated in his statement u/s 161 Cr.P.C that he was beaten by Bansi Lal

and Hari Krishan, he stated that he has not made such statement before the police. PW Ghulam Rasool has also supported the statement of PW

Bashir Ahmed in the same tone. PW Nasima has stated that Roshan Din was residing in the Kulli since about 10 months prior to occurrence. She

stated that complainant party was constructing the house in the land and Roshan Din was sitting inside the Kulli and the accused, who were having

lathies in their hands, came on spot and rushed towards Kulli. Roshan Din was brought out of the Kulli and beaten by the accused, who died on

spot. Her husband Bashir Ahmed, Shamas Din and Ghulam Rasool came on spot to rescue but they were also attacked by the accused persons.

She also stated that the accused looted house-hold goods from the Kulli and escaped from the occurrence. In cross examination she stated that

their residential house is situated at a distance of 6 jareebs from the disputed land. Kulli was constructed by them one and a half month prior to the

date of occurrence which had no walls but only gross roof. Guns and other articles were kept inside the Kulli. Roshan Din used to stay in the Kulli.

The accused has demolished the Kuli. None from the village came on spot at the time of occurrence. PW Badri Nath had been called for

construction of the roof. Shah Mohd is resident of Nagrota. PW Ghulam Rasool is also resident of Nagrota. They had come to assist them in the

construction. The complainant party has not fired any gun shot. The accused persons have not sustained any injury in the incident. PW Mushtaq

has also supported the statement of PW Bashir Ahmed, but in his cross-examination he stated that Kulli was constructed a month earlier to the

occurrence installed on Bamboo poles. PW Shah Mohd has also supported the statement of PW Bashir Ahmed. In his statement he stated that he

had come to the house of PW Bashir Ahmed a day earlier to the occurrence. Deceased Roshan Din was sitting inside the room. The occurrence

lasted for about half an hour. PW Mohd Din is a witness to the seizure memo of lathi recovered from accused Mani Ram.

PW Abdul Gani has stated that he does not know any of the accused persons. He stated that 2 guns were recovered from the house of Jagat

Ram accused, who was not present in the house at that time. PW Bashir Ahmed is his maternal uncle. PW Paras Ram is witness to the seizure

memo of the dead body whereas PW Joginder Singh is a witness to the seal which was kept on his superdari.

PW Abdul Rashid is the field inspector of the Evacuee department. He has stated that he evicted Madan Lal superdar and put Bashir Ahmed

in possession on 4.11.1980. In cross-examination he stated that Custodian General vide his order dated 21.11.1980 has ordered that Thakur

Dass and Ors. be allowed to harvest the crop.

PW AH Mohd, Patwari has proved the khasra girdawari, EXPWAM and EXPWAM/1. He stated that he has prepared the site plan,

EXPWAM/3 and EXPWAM/4. On 22.3.1982, status quo was directed to be maintained on spot by Custodian General with respect to the

disputed land. The land was taken over from Madan Lal superdar and possession was handed over to Badri Nath and Kaku sons of Jagtu, and

Chuni. This change of possession has been made in the record. He stated that there is no mention of any Kotha in khasra No. 300. In cross-

examination he has stated that Khasra No. 300 is recorded in possession of Aniar Nath, Kaku and Chuni since long time. They have not been

evicted from the land.

Dr. Jai Ram Gupta has also been examined who has medically examined injured Ghulam Rasool and found 5 injuries on his person caused by

blunt object. He also examined Shamas Din and Bashir Ahmed. As per this witness all the injuries were simple in nature, except injury No. 4 which

was of grievous nature, inflicted on Shamas Din. Dr. Jatinder Gupta has conducted the post mortem on the dead body of deceased Roshan Din

and noticed injuries on his person, which are fracture of 4th, 5th and 6th rib on the left side of his chest. Rupture on back of left lung, fracture of

upper end of left radius and fracture of upper end of right ulna respectively and the cause of death is shock as a result of chest injuries. In his cross-

examination, he opined that deceased could have survived for few hours if timely medical aid would have been provided to him. As per the doctor,

injuries found inflicted on the deceased could be possible if the deceased was inside the house and roof of the house had fallen on him. He has not

noticed any blood on the sticks shown to him.

PW Shamsher Singh, SI, is the investigating officer. He has proved the seizure memos and recovery memos. He has not seen any roof on the

kotha. None of the prosecution witnesses has named Hari Krishan, Madan Lal or Bansi Lal's involvement in the occurrence.

Defence has examined DWs Surinder Kumar, Madan Lal, Hari Krishan and Makori Ram. DW Surinder Kumar has stated that accused Amar

Nath was posted at Leh on the date of occurrence. He produced the original register which proved that Amar Nath was present on duty. DW

Madan Lal has stated that on the date of occurrence, after hearing gun shot, he went on spot. He stated that Roshan Din was sitting inside the

Kotha and 10/12 persons were engaged in the construction process of Kotha. Land was in possession of Amar Nath, Kaka Ram, Jagat Ram and

Ors.. The construction was being raised in haste, due to which the roof of the Kotha fell down and the prosecution witnesses, including Roshan Din

deceased, sustained injuries. The accused persons have not beaten any prosecution witnesses. DW Hari Krishan stated that he was on spot. The

roof of the house fell down and Roshan Din and other prosecution witnesses sustained injuries because of fall of roof of the kotha on them. DW

Makori Ram has stated that complainant party was constructing Kotha in the land of the accused Jagat Ram, Om Parkash, Bal Krishan and Sham.

The roof of the kotha fell down, as a consequence of which Roshan Din and other prosecution witnesses sustained injuries. The complainant party

was laying clay on the roof of the kotha when it fell down. The accused party did not attack or assault the complainant party. The accused were

not carrying lathies with them.

On appreciation of evidence, it is seen that there is long drawn litigation between the parties. PW Bashir Ahmed was made superdar of the

land by the Custodian. However, physical cultivating possession over the land of Amar Nath, Kaku and Jagtu has been established by the Patwari

which have its bearing in the record also. PW Ali Mohd, Patwari, has further established that the accused party has not committed trespass over

the land in dispute. All the prosecution witnesses are relations. Their evidence has to be taken into consideration with care, though it cannot be

brushed aside. PW Nasima and Shah Mohd have stated that Roshan Din was sitting inside the house whereas other prosecution witnesses have

stated that he was sitting outside the house on a cot and some have stated that deceased was dragged out from inside the Kulli and beaten. It has

also come in the prosecution evidence that only Roshan Din was living in the Kulli. The prosecution has failed to point out as to why Roshan Din

was living in the Kulli in the winter months of November while the Kulli was having no walls and only straw roof and why he had kept with him so

much utensils and house-hold goods including 4 axes, two guns, Ara (Handsaw), 20 blankets, Gyanti, Shawals, Kai, draties, ammunition and live

cartridges. All this shows that the complainant party was fully prepared to attack the accused, if they come on spot. The prosecution named eleven

persons' involvement in the occurrence, whereas during investigation, nothing was found or said against three persons and challan was presented

only against eight persons. Moreover, Amar Nath accused has also proved his non-involvement, being on duty at Leh on the date of occurrence.

From the circumstances, it is established that the occurrence has not taken place in the manner it has been projected by the prosecution. It

appears that when the complainant party started raising construction in the land, the accused persons have stopped them and a scuffle might have

taken place where in the Kotha collapsed and Roshan Din and other prosecution witnesses sustained injuries. Roshan Din could not be provided

immediate treatment and succumbed to the injuries, as opined by Dr. Jatinder Gupta.

There are other circumstances against the prosecution, such as, the lathi recovered from accused Mani Ram is of the size 3'.9"" in length and 4

in width. It is not a lathi but it is a log used in construction of roof. The fracture of ribs and rupture of back of the left lung, could be by this log, if it

had fallen on Roshan Din because of felling down of the construction of Kotha. The lathi recovered from accused Suram Chand is also of the size

of 3'.2"" in length and 3"" in width. This also cannot be termed as a lathi. Some injuries are such in size that these are possibly caused by these logs.

The prosecution has not justified for what purpose the complainant party was in possession of guns, axes and draties, Kehis etc. which can be

safely used as weapons in the fight. It appears that the complainant party being fully prepared started the construction of the Kotha, believing that

the accused party will not be silent spectator to their illegal construction. The accused party might have come on spot and resisted the action of the

complainant party and in that process the Kulli and Kotha were demolished and as a result of this demolition complainant party received injuries.

Moreover some of the witnesses appear to be chance witnesses, being residents of distant places, who have been shown by the prosecution to be

the eye witnesses. The occurrence has taken place on 4.11.1984 at 12 O,clock and the FIR was lodged at 22.15 p.m , which also casts clouds on

the prosecution story. It has come in the defence evidence that the complainant party has fired on the accused party at the time of incident. It

appears that the complainant party has not beaten the accused party in the manner it has been projected by the prosecution. The guns recovered

were not sent to the expert to find out as to whether the guns were used in the incident or not.

From the totality of the circumstances, we are of the view that the genesis of the occurrence has been suppressed by the prosecution. It is not

forth coming from the evidence as to which party was the aggressor so that the cheff can be separated from the grain to pin point the culpability.

Suppression of the genesis of the occurrence is fatal to the prosecution case as held by Supreme Court in case titled Kashi Ram and Others Vs.

State of M.P., . Relevant portion of the judgment is reproduced as under:

A few relevant factual and legal aspects overlooked by the High Court may now be noticed. The investigation suffers from a serious infirmity,

which has to some extent prejudiced the accused in their defence. The investigating officer having found one of the accused having sustained

injuries in the course of the same incident in which those belonging to the prosecution party sustained injuries, the investigating officer should have

at least made an effort at investigating the cause of, and the circumstances resulting in, injuries on the person of accused Prabhu. Not only the

investigating officer did not do so, he did not even make an attempt at recording the statement of accused Prabhu. If only this would have been

done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one-sided.

Section 105 of the Evidence Act, 1872 provides that the burden of proving the existence of circumstances which would bring the act of the

accused alleged to be an offence within the exercise of right of private defence is on him and the court shall presume the absence of such

circumstances. However, it must be borne in mind that the burden on the accused is not so heavy as it is on the prosecution. While the prosecution

must prove the guilt of the accused to its hilt, that is, beyond any reasonable doubt, the accused has to satisfy the standard of a prudent man. If one

of the material available on record a preponderance of probabilities is raised which renders the plea taken by the accused plausible then the same

should be accepted and in any case a benefit of doubt should deserve to be extended to the accused....

The Supreme Court in case titled State of M.P. v. Sardar (2001) 6 SCO 433, has further held as under:

...What is the effect of non-explanation of injuries sustained by the accused at about the time of occurrence? It is settled law that in case of non-

explanation of injuries to the accused, 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.

But, non-explanation of injuries may lose its importance where the evidence is clear, cogent and creditworthy and where the court can distinguish

the truth from falsehood without much difficulty. It is also true that the reasonable inference which could be drawn in such cases is that the accused

persons received the injuries during the course of occurrence and that some members of the prosecution party inflicted such injuries. On that basis

again, the question would be whether the accused caused the injuries to the prosecution witnesses and the deceased by exercising right of private

defence. If the prosecution establishes that the accused were the aggressors and went at the residence of the deceased or that prosecution witness

and inflicted injuries on the deceased and witnesses, there is no question of right of private defence to the accused. On the contrary in such

situation, the prosecution party would have the right of private defence,

For the aforesaid reasons, the criminal appeal No. 4-A/2002 is allowed and the appellants are acquitted of the charges. The acquittal appeals are

dismissed.