Mohd. Khaliq and Others vs State

J.P. Singh, J.—A. Convicted by learned Additional Sessions Judge, Reasi under i ""302/325/324/447/336/149 RPC by judgment of January

15, 2005 and sentenced each to:

Imprisonment for life and fine of Rs. 5000/- under Sections 302/149 R.P.C and in default of fine to rigorous imprisonment for two years;

Five years 325 R.P.C and in default of fine to rigorous imprisonment for one year;

Imprisonment for one year and a fine of Rs. 500/- u/s 324 R.P.C and in default of fine to rigorous imprisonment for a period of two months;

Rigorous imprisonment for a period of three months and a fine of Rs. 250/- u/s 336 R.P.C and in default of fine to rigorous imprisonment for

one month; and

Imprisonment for three months and a fine of Rs. 500/- u/s 447 R.P.C and in default of fine to rigorous imprisonment for a period of one month,

by order of January 17, 2005, Mohd Khaliq, Mohd Razak, Mohd. Farooq and Mohd. Rafiq, have come up in appeal to this Court. Their appeal

registered as Cr. Appeal No. 02/2005 has been heard with the confirmation Reference No. 01/2005 of Learned Additional Sessions Judge,

Reasi.

FACTS:

Two parties are stated to have quarreled in the afternoon of July 22, 1990 at village Dandakote, Darhal in District Rajouri. FIR No. 86 of 1990

lodged by one Mohd Lall at Police Station, Darhal says that, he along with Mujahid-Ul-Hassan had been fencing their land situated at village

Dandakote when all of a sudden Mohd Khaliq, Mohd Razak, Mohd Farooq and Mohd Rafiq came exhorting, And with intention to kill, attacked

them with axes, hoes and lathies. They pelted stones, and Mohd Malik snatched Mujahid-Ul-Hassan's ""Seciko"" watch valuing Rs. 800/-.

FIR No. 87 of 1990 lodged by Mohd Razak appellant, on the other hand, says that there is old enmity between him and Mohd Lall and

Mujahid-Ul-Hassan on piece of irrigated land at village Dandakote, which Mohd Lall and Mujahid-Ul-Hassan wanted to possess forcibly. It was

on July 22, 1990, at about 12.30 P.M. that Mohd Lall, Mujahid-Ul-Hassan, Abdul Rehman, Abdullah and Khalid Mohd. trespassed his land, and

letting loose their cattle, damaged his paddy crop. On knowing about it, he came on spot and told them not to indulge in damaging the crop, when

all of them attacked and started pelting stones. Some persons came there to rescue him.

Mohd. Lall and Mujahid-Ul-Hassan were taken to a Hospital at Darhal. When Mujahid-Ul-Hassan started vomiting in the hospital, Mohd

Ayub, Head Constable, finding his condition deteriorating, approached Dr. Abdul Hamid Mir, Block Medical Officer, Darhal to find out as to

whether or not Mujahid-Ul-Hassan was fit to make statement. On Dr. Abdul Hamid Mir's issuing a certificate of fitness, Mujahid-Ul-Hassan's

statement was recorded by Mohd Ayub in presence of Dr. Abdul Hamid Mir who had attested it.

Mujahid-Ul-Hassan was shifted to Rajouri and thereafter to Government Medical College Hospital, Jammu and ultimately to Christian Medical

College, Ludhiana, where he succumbed to the injuries.

After investigation of case FIR No. 86 of 1990, final police report u/s 173 Cr.P.C. was bid before the learned Chief Judicial Magistrate, Rajouri,

who committed the case to Learned Sessions Judge, Rajouri vide his order of September 14, 1990.

Finding a case under Sections 302/325/324/447/336/149 RPC against the appellants and additionally u/s 382 RPC against Mohd Malik, who

had died during the trial of the case, made out, they were charged under the aforementioned offences. They pled 'not guilty' to the charge and

claimed to be tried.

To sustain the charge, the prosecution examined Mohd. Lall (PW-1), Mohd. Riaz (PW-2), Abdul Rehman (PW-3), Wazir Mohd. (PW-4),

Zulfkar Ali (PW-5), Allah Dar (PW-6), Mehboob-Ul-Hassan (PW7), Mohd. Sadiq (PW-8), Mohd. Riaz (PW-9), Mohd. Abdullah (PW-10),

Ghulam Naib (PVV-11), Dr. Mushtaq Hassan (PW-12), Dr. Abdul Hamid Mir (PW-13), Mohd. Ayub (PW-14) and Mohd. Bashir (PW-15), as

its witnesses.

Incriminating circumstances appearing in the prosecution evidence were put to the appellants for their explanation.

One of the appellants namely Mohd Razak, gave his own version of July 22, 1990 occurrence and filed an additional written statement which,

inter alia, says that:

Preparation for a religious ceremony was in progress at his house and household persons were busy therein when his servant Kalu told him at

about 12.30 P.M. that Mohd Lall had been damaging the fence of his land and had caused damage to his paddy crop by letting his cattle loose

towards his field. On reaching there he found Mohd. Lall, Mujahid-UlHassan, his servant Abdullah Gujjar, Riaz alias Razi, and Khalid Mohd

demolishing the fence which separated his land from that of Mohd. Lall and Mujahid-Ul-Hassan. They had damaged his paddy crop. He told them

to refrain from causing damage but they attacked, beat him and pelted stones. Abdullah gujjar had a small axe. One of the stones hit him at his

head and the other at his back but there was not noticeable injury because he was wearing a leather cap. In the meanwhile Zulfkar Ali Prosecuting

Officer and ladies of the accused appeared there

Rest of the appellants, barring Mohd Rafiq alias Kalu, have denied the occurrence.

Appellants have produced Abdul Rashid Nazir, Assistant Commissioner's Office Rajouri, Ghulam Hassain Patwari and Shiv Ram, Lambardar

of village Sangpur of Tehsil Nowshera as their defence evidence.

We have heard learned Senior Counsel appearing for the appellants, the learned State counsel and perused the evidence and material on

records. Learned trial judge has reproduced the statements of the prosecution and defence witnesses in his judgment, reproduction whereof may

not thus be necessary. However, reference thereto and to other material on records shall be made, wherever necessary, in this judgment.

DISCUSSION:

Two versions of the occurrence which took place at village Dandakote (Darhal) on July 22, 1990 afternoon, have been projected in the case.

Whereas, the prosecution version holds the appellants responsible for trespass into Mohd Lall and Mujahid-Ul-Hassdft's land comprised in

Khasra No. 178 situated at village Dandakote and attack on Mohd Lall, Mujahid-Ul-Hassan and others with lethal weapons resulting in serious

injuries on the head and face of Mohd Lall and head of Mujahid-Ul-Hassan who had later succumbed to the injuries, the defence version, on the

other hand, holds Mohd Lall, Mujahid-Ul-Hassan, Abdul Rashid Gujjar, Mohd. Riaz and Khalid Mehmood responsible for demolishing the fence

which separated appellant Mohd Razak's land from that of the field of Mohd. Lall and Mujahid-Ul-Hassan, besides damaging his paddy crop,

beating, and stoning the appellants.

Appellants have not led any evidence to prove their version of the occurrence because the evidence produced by them in the case pertains

only about the signatures of Mujahid-Ul-Hassan on various official documents and regarding entries of land situated in village Sangpur. This

evidence, besides referring to the signatures of Mujahid-Ul-Hassan on various official documents, indicates PWs-Mohd Riaz and Wazir Mohd to

be the residents of village Sangpur.

We are thus left with the prosecution evidence alone to see as to which of the two versions has been proved to be true and correct version of the

occurrence.

Narrating the occurrence PW-1 Mohd Lall says that, he and Mujahid-Ul-Hassan were mending the fence of their land comprised in Khasra

No. 178 situated in village Dandakote when the appellants and Mohd Malik had attacked them with axes, hoes and Lathies by committing criminal

trespass. According to him, he had received injuries on his head and face whereas Mujahid-Ul-Hassan had received injuries on his head. He says

that Mohd Khaliq and Mohd Razak had used axe and hoe in causing injuries to him and Mujahid-Ul-Hassan whereas rest of the appellants had

used Lathies and stones. According to him, statement of Mujahid-Ul-Hassan had been recorded by the police when he was admitted in a Hospital

at Darhal. His statement too had been recorded in the same Hospital where he had been admitted after he had lodged FIR No. 86 of 1990 at

Police Station, Darhal.

Statement of Mujahid-Ul-Hassan has been recorded by PW-14 Mohd Ayub Head Constable, in presence of PW-13 Dr. Abdul Hamid Mir

Block Medical Officer, Darhal who had attested it.

Learned Counsel for the appellants, while questioning the credibility of the prosecution evidence, had submitted that the prosecution evidence was

unworthy of credence and would not warrant acceptance. According to him, there was three days delay in recording the statements of the

prosecution witnesses by the Police u/s 161 Cr.P.C. and PW-2 Mohd Lall had not named appellant Mohd Razak as one of the assailants in his

FIR. According to the learned Counsel, Mohd Farooq and Mohd Rafiq were innocent and had been unnecessarily roped in as accused, which,

according to him, would be apparent when role attributed to them during the trial of the case was viewed in the light of the story projected in the

FIR, statements recorded u/s 161 Cr.P.C. and the dying declaration of Mujahid-Ul-Hassan. He submitted that the prosecution had suppressed the

genesis of occurrence and had relied upon the statements of the witnesses whose names, though known, had not been mentioned in the FIR.

Projecting variance in the ocular and medical evidence, he submitted that the prosecution case was liable to be rejected because appellants had

been wrongly and illegally roped in as accused

Learned State counsel, on the other hand, justifies the conviction of the ""appellants saying that minor contradictions are bound to be there in the

statements of truthful witnesses and that the contradictions pointed out by the defence counsel were inconsequential. Learned State counsel states

that the prosecution has proved its case to the hilt and the conviction recorded by the learned Additional Sessions Judge, Reasi does not warrant

interference.

Three days delay in recording the statements of the prosecution witnesses u/s 161 of the Cr.P.C. does not appear to us to be such an infirmity

which may affect the prosecution case. This is so because the version projected by the prosecution witnesses in their statements is the same which

comes out from EXPW-AH/3, the dying declaration of Mujahid-Ul-Hassan which had been recorded and attested on the day of occurrence itself.

Even otherwise, the police had been busy in shifting the deceased Mujahid-Ul-Hassan from one Hospital to another in a bid to save his life and

three days delay in recording the statements of the prosecution witnesses thus, even otherwise, stands appropriately explained.

Insofar the next contention of the appellants' counsel is concerned, no doubt, Mohd Razak's name does not find place in Mohd Lall's FIR yet

the omission does not appear to us to have in any way affected the prosecution story because Mohd Lall had explained during his cross-

examination that he had omitted to give Mohd. Razak's name because of his confused state of mind at the lime of lodging the FIR when he had not

correctly remembered Mohd. Razak's name and had given Mohd. Razak's name as Mohd. Riaz which in fact was his nephew's name. That apart,

a close reading of the FIR reveals that the three assailants, who according to PW-Mohd Lall had attacked him and Mujahid-Ul-Hassan, were the

sons of one Said Mohd. It is no body's case that Mohd Riaz alias Rajji is also one of the sons of Said Mohd. In this view of the matter, we,

therefore, find that Mohd Lall had intended to disclose in the FIR that the assailants were the three sons of Said Mohd and it was probably

because of his nephew's name hovering in his mind that Mohd Lall, while giving the names of two assailants correctly, had wrongly reflected

Razak's name, who was the third son of Said Mohd, as Mohd Riaz in the FIR. Another factor which needs to be noticed in appreciating the

clarification of Mohd. Lall in this respect is that Mujahid-Ul-Hassan had specifically named Mohd. Razak as one of the assailants in his dying

declaration and the same is true of the statement which Mohd. Lall too had made in the Hospital in presence of Dr. Abdul Hamid Mir PW-13 on

the day of occurrence.

We are thus of the view that omission of Mohd. Razak's name in the FIR does not affect the evidence of the prosecution witnesses who have

specifically named him as one of the main assailants who had attacked Mohd. Lall and Mujahid-Ul-Hassan. Plea of Mohd. Razak's innocence

raised by learned Counsel for the appellants, therefore, fails and is, accordingly, rejected.

We do not find any merit in the plea of appellants' counsel that the genesis of the occurrence had been suppressed by the prosecution by not

mentioning about the result of investigation of appellant Mohd. Razak's FIR No. 87/1990 in the final police report. This is so because we do not

find any material on records to disbelieve the dying declaration of Mujahid-Ul-Hassan which had been recorded by PW-14 Mohd. Ayub and

attested by PW 13 Dr. Abdul Hamid Mir on the day of occurrence itself. This apart, appellants had not produced any evidence during the trial to

substantiate the version projected by them in Mohd. Razak's FIR. Occurrence having been admitted by appellant Mohd. Razak to have taken

place in which none of the appellants are stated to have received any injury, and on the other hand, serious injuries having been found on the

person of Mohd. Lall and Mujahid-Ul-Hassan with the weapons which had been used by Mohd. Razak and Mohd. Khaliq, impel us to reject the

submission of appellants' learned Counsel as mis-conceived. Non-mentioning about the result of FIR No. 87/1990 in the final police report has not

affected the prosecution case because Mohd Bashir, the Investigating Police Officer had disclosed during his cross-examination by the appellants

that FIR No. 87/199Q had been closed by him as not proved.

Non-mentioning of the names of the eye witnesses by Mohd Lall in the FIR too does not, in our view, affect the prosecution story because

presence of these witnesses on spot has been established beyond any shadow of doubt and Mohd Razak too had admitted about their presence

on spot at the time of occurrence, in his written statement which had been filed by him when his statement u/s 342 Cr.P.C. was recorded.

We do not find any merit in appellants' counsel's yet another submission when he says that the medical evidence does not support the ocular

version because we do not find any such thing in the medical evidence which may be said to materially affect the version projected by the

prosecution witnesses demonstrating the manner in which injuries had been caused to Mohd Lall and Mujahid-Ul-Hassan when their land was

trespassed and an attack was mounted on them with axe and hoe.

We will now examine appellants' counsel's contention as to the innocence of some of the appellants and the offences which may be said to

have been committed by those who may be found involved in the commission of the offences in the occurrence which took place at village

Dandakote in the afternoon of July 22, 1990.

We have gone through the evidence of the injured witnesses, the dying declaration EXPW-AH/3, of Mujahid-Ul-Hassan and the statement of

Zulfkar Ali PW-5. The evidence of PWs Mohd Lall, Mohd Riaz, Abdul Rehman and Wazir Mohd proves the presence of appellants Mohd

Khaliq and Mohd Razak at the place of occurrence on July, 22, 1990 at about 1.00 P.M. According to these witnesses, Mohd Khaliq and Mohd

Razak, armed with axe and hoe had attacked Mohd Lall, Mujahid-Ul-Hassan, Mohd Riaz and Abdul Rehman. These witnesses say that the attack

had resulted in three injuries on the person of Mujahid-Ul-Hassan, and four on Mohd Lall. Mujahid-Ul-Hassan had received all the three injuries

on his vital part i.e. head, whereas Mohd Lall had received all the four injuries on and around the vital part of his body i.e. head. PW-13 Dr. Abdul

Hamid Mir on his examining PW-1 Mohd Lall and the deceased Mujahid-Ul-Hassan on July 22, 1990 had found three injuries on the person of

Mujahid-Ul-Hassan i.e.

A lacerated wound 1"" x 1/2"" and bone deep on the left parito-frontal region of the scalp vertically placed, and fresh clotted blood present on

and around the wound.

A lacerated wound 1"" x 1/2"" and bone deep on the right parieto-occipital region of the scalp vertically present and the local under lying area

was slightly depressed. Fresh clotted blood present on and around the wound on the scalp.

A bruise 2"" x 1"" on the left upper arm 4"" above the elbow on the lateral side which was transversely placed and was red coloured.

Four injuries found on the person of Mohd. Lall are as follows:

An incised wound 1"" x 1/2"" exposing the bone on the left maxillary region of the face 2"" below and to the left of the eye. The wound was

transversely placed and bleed on touch.

A Lacerated wound 11/2"" x 1/2"" x 1/2"" on the middle of the occipito-parietal region of the scalp, vertically placed and clotted blood was

present around it.

A lacerated wound 2"" x 1/2"" and was bone deep on the left frontal region of the scalp extending backwards vertically from the hair line with

clotted blood present all around.

A lacerated wound 1"" x 1/2"" x 1/2"" vertically placed on the occipital region of the scalp and clotted blood present around the wound.

The weapons with which these injuries had been caused by Mohd Khaliq and Mohd Razak had been recovered by the police pursuant to the

disclosure made by these appellants. The disclosure statements and memo of recoveries have been proved by PW-8 Mohd Sadiq and PW-9

Mohd Riaz. Both these weapons had been shown to Dr. Abdul Hamid Mir who had opined that injury No. 1 received by Mohd Lall i.e. an incised

wound 1"" x 1/2"" exposing the bone on the left maxillary region of the face 2"" below and to the left of the eye, could be possible by sharp side of

the weapon and injury Nos. 1 and 2 received by Mujahid-Ul-Hassan i.e. a lacerated would 1"" x 1/2"" and bone deep on the left parieto-frontal

region of the scalp vertically placed, and a lacerated wound 1"" x 1/2"" and bone deep on the right parieto-occipital region of the scalp vertically

present and the local under lying area was slightly depressed, could be possible by blunt side of the hoe or axe or by their handles.

According to the seizure memo, EXPWMS/6, the hoe recovered by the police at the instance of appellant Mohd. Razak had 331/2"" long

handle which was 4"" in width. The length and breadth of its blade was 8"" x 51/2"". Whereas according to the seizure memo, EXPWMS/9, the

handle of the axe recovered at the instance of Mohd. Khaliq was 321/2"" long and 31/2"" in width and the size of its blade was 5"" x 6"".

Statements of these witnesses get further support from the statement of PW-5 Zulfkar Ali who had reached the spot immediately after the

occurrence and had seen the injured on spot, who had told him that the appellants had attacked them with axe and hoe.

All the aforementioned factors, therefore, lead us to the conclusion that Mohd. Khaliq and Mohd. Razak were the persons who had initially

attacked Mujahid-Ul-Hassan and when Mohd Lall and others had intervened to save them, they had also been attacked with the axe and hoe by

them. They had attacked these persons when they were in their own land in Khasra No. 178, mending the fence which separated their land from

the land of the appellants comprised in Khasra No. 177.

According to the learned Counsel, role attributed to Mohd Farooq that he and Mohd. Malik had caught hold of Mujahid-Ul-Hassan when

Mohd Khaliq had attacked him with an axe and Mohd Razak with the hoe, does not find place in the FIR, demonstrating false involvement of

Mohd Farooq as one of the persons who had joined others in attacking Mujahid-Ul-Hassan and Mohd Lall and others with the axe and hoe.

According to the learned, counsel, there was no evidence worth the name against Mohd Rafiq alias Kalu attributing any overt act to him in the

occurrence and the story of his pelting stones was unbelievable because none had been proved to have been hit by the stones pelted by him.

We have examined the contention of learned Counsel for the appellants in the light of the prosecution evidence. The evidence produced by the

prosecution indicates a sudden attack on Mujahid-Ul-Hassan and others who were mending the fence.

In a situation, when the attack is sudden, it may not be possible for anyone to give a dramatic and graphic account of the event and it,

therefore, does not appear believable to us that in the sudden attack any witness could have noticed the act which the prosecution had attributed to

Mohd Farood and Mohd Malik of their having caught hold of Mujahid-Ul-Hassan and facilitating causing of injuries to him by the two assailants.

Mohd Lall's omission to mention about Mohd Farooq and Mohd Malik's catching hold of Mujahid-Ul-Hassan facilitating attack by Mohd Khaliq

and Mohd Razak, in the FIR, is yet another circumstance which supports our view. Attributing the role of holding Mujahid-Ul-Hassan to Mohd

Malik and Mohd Farooq, by the prosecution witnesses, therefore, appears to us to be an improvement in the prosecution story which is not

supported by any reliable evidence. Version of some of the prosecution witnesses attributing a Lathi blow by Mohd Farooq to the deceased

Mujahid-Ul-Hassan, on his arm, too for the same reasons, is not believable. This role attributed to Mohd Farooq, during the course of the trial,

does notfind place either in the FIR or in the dying declaration of Mujahid-Ul-Hassan. The attack with the weapons, being sudden thus rules out

the involvement of Mohd Farooq and Mohd Malik in the occurrence.

We are, thus, of the opinion that Mohd Malik, who had died during the trial, and Mohd Farooq, one of the appellants, have been wrongly

roped in as accused in the case.

We will now deal with the submission of appellants' counsel regarding the involvement of Mohd Rafiq alias Kalu in the occurrence.

The prosecution evidence does not even remotely hint at any body's receiving injuries in the occurrence because of the stones stated to have

been pelted by Mohd Rafiq. The investigating agency has not seized any such stones from the place of occurrence which are stated to have been

pelted by Mohd Rafiq. The only stone which has been seized during the course of the investigation, which weighs six and a half kilogram, has not

been alleged to have been pelted by Mohd Rafiq, and looking to its size, it cannot be believed that the same could have been used for pelting. This

stone, on the other hand, appears to be the one which had been used in the fence which had separated the land of the appellants from that of

Mujahid-Ul-Hassan and others. The FIR and the dying declaration of Mujahid-Ul-Hassan too do not attribute any role to Mohd Rafiq alias Kalu

in the occurrence and all that has been said in the F.I.R and in the dying declaration is that he had come along with other persons at the place of

occurrence. Story of pelting of stones by Mohd Rafiq alias Kalu thus appears to have been introduced only during the course of the trial. We are

not prepared to believe this part of the prosecution story as correct in view of the omission of any role attributed to Mohd Rafiq alias Kalu in the

occurrence, either in the FIR or in the dying declaration of Mujahid-Ul-Hassan.

Mohd. Rafiq alias Kalu, too, therefore, appears to us to have been falsely implicated as one of the assailants who had been alleged to have

been indulged in pelting stones during the course of the attack.

Appellants have summoned official records of the Assistant Commissioner's office bearing signatures of Mujahid-Ul-Hassan to demonstrate

that the signatures appearing on the dying declaration would not tally with the signatures of Mujahid-Ul-Hassan on the official documents. There is

no merit in this submission of the appellants because we do not find anything on records to disbelieve the statements of PWs-13 and 14, who have

categorically deposed that Mujahid-Ul-Hassan had made and signed his statement in their presence in the Hospital at Darhal. Detailed examination

of the statements of these two witnesses demonstrates that the appellants had not been able to elicit anything during their cross examination which

may point out any infirmity in their statements. We have, therefore, believed their statements to be true and correct additionally because these two

witnesses are not alleged to have any animus against the appellants and had deposed about the events which had taken place during the course of

their discharging the official duties.

This takes us to examine as to what offence had the two assailants namely Mohd Razak and Mohd Khaliq committed while mounting an attack

on Mujahid-Ul-Hassan, Mohd Lall, Mohd Riaz and others on July, 22, 1990 at about 1.00 P.M.

Mohd Abdullah, PW-1, Patwari has deposed that land comprised in Khasra No. 178 comprises of 2 kanals 5 marlas, entries whereof, in the

Revenue records reflect Mujahid-Ul-Hassan and Mehboob-Ul-Hassan as occupants thereof. Land comprised in Khasra No. 177 adjacent to the

land comprised in Khasra No. 178 stands entered on the names of Mohd Malik, Mohd Khaliq, Mohd Razak and Karam-Ullah. There is a stone

fence in between these pieces of land and the place of occurrence is at a distance of five karam towards east. The appellants have not produced

any evidence showing their possession over the land where the occurrence had taken place, which stands recorded in the name of Mujahid-Ul-

Hassan, deceased.

Learned Counsel for the appellants too had not raised any plea during the hearing of the appeal, asserting appellants' possession over the land

where the occurrence had taken place. Appellants-Mohd Razak and Mohd Khaliq, by mounting an attack on deceased Mujahid-Ul-Hassan,

Mohd Lall and others had entered the land which has been proved to be in possession of Mujahid-Ul-Hassan, armed with lethal weapons, with an

intention to commit offences. They had attacked deceased Mujahid-Ul-Hassan, Mohd Lall and Mohd Riaz who had tried to intervene and rescue

Mujahid-Ul-Hassan. Illegal entry of Mohd Razak and Mohd Khaliq into the land of Mujahid-Ul-Hassan with an intention to commit offences thus,

makes them guilty of offence punishable u/s 447 RPC.

We, therefore, do not find any error in learned Sessions Judge's recording conviction against the appellants Mohd Razak and Mohd Khaliq u/s

447 RPC.

In view of our finding that Mohd Din, Mohd Farooq and Mohd Rafiq were not involved in the occurrence, the prosecution case, that the

appellants had formed an unlawful assembly, therefore, fails to that extent because the number of assailants would stand reduced to only two.

None can, therefore, be said to be guilty of rioting or for the offence punishable u/s 149 RPC.

We, however, find that Mohd Razak and Mohd Khaliq had entered Mujahid-Ul-Hassan's land armed with axe and hoe with the intention of

causing such bodily injuries to Mujahid-Ul-Hassan which were likely to cause death. Both these accused had come on spot after having made

preparation to attack Mujahid-Ul-Hassan and had shared common intention to cause such bodily injuries on the head of Mujahid-Ul-Hassan

which were likely to cause death. Both these accused were so much determined to cause injuries to Mujahid-Ul-Hassan that they did not spare

even those who had intervened to save Mujahid-Ul-Hassan from their attack. They did not hesitate in causing injuries to PW-1 Mohd Lall. Both

these persons had mounted an attack on Mujahid-Ul-Hassan who has been proved during the trial to be unarmed at the time of the occurrence.

Likewise, PW-1 Mohd Lall too was unarmed when he was attacked and hit by these two persons with the weapons they were carrying.

The manner in which these two appellants had come armed with lethal weapons, trespassed into the land of Mujahid-Ul-Hassan and hit him

repeatedly with the weapons they were carrying, when Mujahid-Ul-Hassan was unarmed, demonstrates their common intention of causing such

bodily injuries on the person of Mujahid-Ul-Hassan which were likely to cause death. The medical evidence produced by the prosecution proves

that the death of Mujahid-Ul-Hassan had resulted because of the injuries received by him in the occurrence of July, 22, 1990. We, therefore, find

both of them guilty of murder punishable u/s 302/34 RPC. These appellants had caused injuries to PW-1 Mohd Lall when he had tried to intervene

and save Mujahid-Ul-Hassan. The manner in which the appellants have used their weapons, which were instruments used for cutting, in causing

injuries to Mohd Lall too demonstrates that they had intention of causing injuries which were likely to cause death. The injuries caused by these

two appellants on the person of Mohd Lall had endangered his life. We, therefore, find both these appellants guilty of voluntarily causing grievous

hurt with lethal weapons used for stabbing and cutting, punishable u/s 325/34 RPC.

We further find that the punishment of fine awarded to the appellants is not commensurate with the offences committed by them.

CONCLUSION:

For all what has been said above, while dismissing the prosecution case and setting aside the judgment and order of learned Additional

Sessions Judge, Reasi, insofar as it pertains to appellants Mohd Farooq and Mohd Rafiq and acquitting them of the charges with which they stood

charged, we modify the judgment of the trial court and hold appellants Mohd Khaliq and Mohd Razak guilty of offences punishable u/s 302,447

read with Section 34 of RPC. Both of them are accordingly convicted and sentenced to imprisonment for life and to fine of Rs. 25000/- each. We

further find these appellants guilty of offence punishable u/s 325/34 RPC and convict them accordingly by sentencing them each to undergo

rigorous imprisonment for five years and a fine of Rs. 2,000/- and in default of fine to rigorous imprisonment for one year.

Fine when recovered shall be paid to the next of kind of Mujahid-Ul-Hassan and PW Mohd Lall, the injured, in equal shares.

Learned Additional Sessions Judge, Reasi to take requisite steps to implement the judgment. Order of March 11, 2005 admitting Mohd Razak

to bail is recalled and he is directed to surrender to custody forthwith to serve the remaining sentence.

This appeal and the confirmation reference are accordingly disposed of.