SYED BASHIR-UD-DIN, J. -
(1.) In all six accused were tried in Sessions Case 9/1983, State v. Sabir Hajam and others, by District and Sessions Judge, Pulwama. Accused Gani Jaham, and Sabir Hajam, were convicted and sentenced to 10 years rigorous imprisonment under Section 304-I, R.P.C. Three accused Gulla Hajam, Ali Hajam and Rashid Hajam, were convicted and sentenced to one year simple imprisonment under Section 323, RPC and accused Nazir Hajam has been acquitted. Against this judgment of conviction/acquittal dated 1-8-1985 and order of sentence dated 14-8-1985, accused Sabir Hajam and Gani Hajam filed criminal appeal 6/85, so far as their conviction and sentence is concerned. The State has also filed Criminal/Acquittal Appeal 28/85, against the said judgment and order. Gani Hajam, co-appellant in Criminal Appeal 6/85 and accused-respondent in other Appeal 28/85 has died during the pendency of the appeals. With the death of this co-appellant, Criminal Appeal 6/85 has finally abated, so far as this co-appellant is concerned and the appeal filed by the State 28/85 shall also finally abate against him. The accused Gulla Hajam, Ali Hajam and Rashid Hajam have not filed appeal against their aforementioned conviction and sentence.
(2.) Both the appeals shall be governed by this common judgment, since same questions of fact and law, are involved in both the appeals.
(3.) The prosecution case in brief is :- On 8-4-1983, in Hariparigam, a village of Tehsil Tral, accused were digging soil for planting trees-saplings across the road near the shop of the deceased Gani Rather (more specifically described and referred to in site-plan Exp. 8), prosecution witness Abdul Rashid Rather a lawyer by profession, happen to pass by this spot. He was conducting a case on behalf of Mst. Freechi, Khati and others, against the accused regarding this land covered by a status quo order issued by the Court in the pending suit. He asked accused what they are doing when the case is pending and status quo order is in force. The accused took it ill. One of the accused caught him by hair and the other accused tried to floor him. In the meanwhile, his father Gani Rather, arrived on spot. He caught his son by arm and took him aside. He admonished and told him to pursue case and take legal action against them in the Civil Court at Tral. This further angered the accused. Sabir Hajam and Gani Hajam struck Gani Rather's head with Danda blows. Gani Rather fell on the ground and became unconscious. Abdul Rashid with the help of his brother, relations and other witness lifted and laid him on the shop-varenda, local Doctor was send for, who on examination of this patient advised them to get the service of the Doctor posted at Tral. In the meanwhile, Police also reached the spot. Gani Rather, was brought in a taxi to Awantipora, where Dr. Fayaz Ahmad Khan (PW 17) examined him and advised his attendants to carry him to Srinagar, after taking note of the serious condition of the patient. He was taken to SMHS Hospital, Srinagar, in unconscious state with the head injuries. He was hospitalised, but as his condition deteriorated, he died next day on 9-4-1983 at 1 PM. The police had registered the case as FIR 43/83 at Police Station Awantipora, after the deceased's brother Wali Mohd. Rather, lodged FIR (Ex-PS). The investigation were launched, injury report was prepared, medical reports were obtained, dead body was subjected to post-mortem. The autopsy report-Ex.P7 was collected. The site plans Ex.P9 and Ex.P8 were prepared. Statements of witnesses have been recorded under Section 161, Cr. P.C. The Dandas (sticks) weapon of assault, were also recovered and seizure memo thereto prepared. Other investigative
steps were also taken. The investigation culminated in sending accused for trial under Sections 302/149, RPC. The challan was produced before the Judicial Magistrate, Tral. The case was committed to Sessions for trial. The Sessions Judge, Pulwama frame charges against the accused under Sections 302/141/149, RPC. Accused pleaded not guilty to charges and opted for the trial. Prosecution has examined twenty one (21) witnesses and the Public Prosecutor also placed on record the injury reports of the three accused, besides of the two women, and also tendered in evidence FIR, memos, Medical and injury reports, post-mortem report, site plan, replies to the queries obtained from the expert witnesses and revenue record of the land. At the close of the prosecution evidence, each of the accused has been examined under Section 342, Cr. P.C.;