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 Hajamli 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 coappellant, 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 siteplan 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, postmortem 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.
4. Accused have not opted despite opportunities to lead evidence in defence. On hearing, the trial concluded in terms of above mentioned conviction and sentence of the accused, other than Nazir Hajam, who stood acquitted.
5. The Government Advocate assails the conviction and sentence on the ground that the accused have not been convicted under Sections 302, 148 and 149, RPC when evidence, facts and circumstances of the case are sufficient to sustain conviction of the accused under these penal provisions. The trial Court is alleged to have ignored the evidence on record and failed to appreciate the whole evidence. The Court below has failed to apply the law on facts of the case qua conviction and punishment of the coaccused on vicarious liability as members of unlawful assembly, who turned rioteous, resulting in murder of Gani Rather by Gani Hajam and Sabir Hajam, members of the unlawful assembly. It resulted in erroneous conviction of prime accused Sabir Hajam alone under Section 304(1), RPC. The conviction of the three other accused Sula Hajam, Ali Hajam and Rashid Hajam Under Section 323, RPC and acquittal of accused Nazir, is equally bad and erroneous.
6. The defence counsel counters the above argument of Government Advocate on submissions that the witnesses appearing in the case are relations and interested witnesses. Their evidence has not been properly appreciated. The evidence has been misread and quoted out of content. The accused also suffered injuries which have not been explained and the defence version has not been considered. The accused merits acquittal rather than conviction on evidence led and facts proved.
7. Deceased's brother Wali Rather, complainant-PW 1, has emphatically without any ambiguity testified that when the accused were abusing and belabouring PW 2, Abdul Rashid, deceased appeared on the scene and got hold of the arm of Abdul Rashid and took him aside to impress that he should take recourse to law, rather than fight with the accused. The accused, Sabir Hajam and Gani Hajam, did not take these words kindly and each of them struck one Danda blow on the head of the deceased Gani Rather, who fell down. The other accused came and beat him thereafter. The deceased was examined on spot by Dr. G.N. Kena, Incharge Unani Dispensary Hariparigam and Dr. Nissar of Primary Health Centre Tral, on their advice he was carried in a taxi, firstly to Awantipora where the report was lodged and thereafter he was examined by Dr. Fayaz Ahmad Khan, PW 17, at Awantipora, who referred him to SMHS Hospital, Srinagar. He was examined there by Dr. Subash Chand and X-Ray of his Skull was taken. He was hospitalised. Next day his condition deteriorated and he died in hospital. He was taken to Pampore where Medical Officer Pampore Dr. Ali Mir PW 19, conducted post-mortem (Ex.P7) on the dead body. Abdul Rashid PW 2, Bashir Ahmad Rather PW 3, Ghulam Ahmad Bhat, PW 4, Mohd. Maqbool Rather PW 7, Aziz Khandey PW 9, Jalal-ud-din Zarger PW 10, and Mohd. Yousuf Rather PW 11, eye-witnesses to the occurrence have given materially and substantially same account of the occurrence. PW 1, PW 2, PW 3, PW7 and PW 11 are close relations of the deceased. All these witnesses as also the independent witness including PW 9, and PW 10, have corroborated the prosecution case that accused Late Gani Hajam and the Co-appellant accused Sabir Hajam, each struck a Danda blow on the head of deceased Gani Rather. This ocular account of the occurrence as given by witnesses is fairly corroborated by the injuryreports and the post-mortem report, coupled with the deposition of concerned Doctors viz, PW-17, PW-18 and PW-19.
8. Dr. G.M. Kena, PW 20 and Dr. Nissar, PW-21 of the Primary Health Centre Tral were first to examine the deceased just near the site of occurrence on the deceased's shop and both having a feel of injury sustained and state of his health, directed deceased relations to take him for better Medical treatment and attendance to Awantipora. However, Dr. Fayaz Ahmad Khan, Medical Officer Awantipora PW 17, on examining this patient referred him to SMHS hospital Srinagar for observation and X-Ray of skull, in so far as he too found him in a delirious condition, therefore, hastened to refer him to Srinagar.
9. PW-18, Dr. Subash has deposed that he admitted the deceased in the hospital on 9-4-1983 as a case of head injury. X-Ray of his skull revealed fracture on parietal bone both sides. The condition of the patient deteriorated gradually and he landed in deep coma, and ultimately died on 9-4-83. He has also opined that the death could have been caused by receiving two danda blows on the head.
10. Dr. Ali Mohammad Khan, Medical Officer, Pampore, PW 19, conducted the post-mortem and prepared the autopsy report Ex. P-7. The witness has deposed that the deceased had accymosis all around the left eye with following injuries on his head :-
1. A swelling of the left frontal and left temporal area 3' x 3' in diametre with a bruise 1 1/2' x 2' over it.
2. A thorough and thorough linear fracture of scalp transversely with 2' x 2' depressed fracture on the left parital side 1' x 1 1/2' in diametre to left parital emminance with total fracture of 9'.
3. A haemotoma 2 1/2' x 2 1/2' on the surface of the brain in the left parital area under the eight of fracture.
The witness opines that the death was due to cerebral compression because of intracranial haemorrhage leading to cardio respiratory failure shock and death. The injuries were anti-mortem and sufficient in the ordinary course of nature to cause death. The Danda Ex.PB, could cause the injuries. The doctor has also opined that the injuries found on the deceased's head could have been caused by two blows in so far as the one blow has caused the transverse fracture and the other depressed fracture and swelling. The two injuries are not possible by a single blow.
11. Seizure and recovery of the Dandas Ex-PC and Ex-PD (weapon of offence) and the medical evidence including autopsy report, fully corroborate the ocular account of occurrence given by the eye-witnesses.
12. The defence counsel contends that the eye-witnesses are close relations of deceased, inasmuch as, complaint PW-1, is brother of the deceased, PW 2 a lawyer by profession, is the deceased's son; PW-3 is complainant's son and nephew of the deceased; PW-7 is nephew of deceased and PW-11 is another son of the deceased. These witnesses with such close relation with the deceased, should not be believed as they are very much interested to implicate the two accused in the crime. The other witnesses examined in the case are more or less interested to implicate the accused in the commission of crime in question.
13. The Government Advocate, while conceding the relationship of the aforementioned witnesses to the deceased, canvases that merely because these witnesses are relations, their evidence cannot be discarded on that count. These relations witnesses who have deposed to the to the case, are natural witness and their testimony is trustworthy and has been rightly believed by the Sessions Judge. The other witness are not interested as nothing is on record to show that the other witnesses have any interest to implicate the accused.
14. In Masalti v. State of Uttar Pradesh AIR 1965 SC 202 : 1965 (1) Cri LJ 226, Gajendragadkar, C. J. speaking for the Court observed :. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discripancies in the evidence; whether or not evidence strikes the Court as genuine, whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed, as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct...
15. In the facts and circumstances of this case, the evidence given by the eye-witnesses cannot be discarded only because they happen to be relation/interested witnesses. Of course the Court has to deal with this evidence with circumspection. The caution has to be the approach. But the fact remains that the evidence cannot be rejected simply because it has come forth from the mouth of relation or interested witness(es).
16. We have minutely examined the evidence, we find that the account given by the witnesses is most natural. It is trustworthy. No circumstances emerge from record to show that the witnesses have spoken dubiously about the two accused Late Gani and Sabir Hajam having struck the deceased Gani Rather's head with Dandas which each one of them was holding leading to his death in the hospital. The statement of complainant-Wali Mohammad Rather, Abdul Rashid, Bashir Ahmad, Maqbool Rather and Mohammad Yousuf Rather, appear quite natural. No contradictions on material particulars are discernible from their deposition. The evidence qua these two accused is confidence-inspiring. The evidence is fully corroborated by two other non-relation and independent witnesses namely Jalaluddin Zarger PW-10 and Aziz Khandey-PW 9. Besides the injury reports and Medical evidence is in accord with and fully corroborates the ocular account of the occurrence given by the eye-witness. In the circumstances and fact-situation of the case, the evidence is seen natural, credit-worthy and reliable. No contradictions on material aspects are observed. Mere variations in innocous details of deposition(s) of witness(es) serves more as a badge of honesty, rather than dishonesty. After all such variations in innocous details are due to difference in faculties of observations, recollection and repetition. The conviction of these two accused Under Section 304, RPC, is based on positive, cogent and credible evidence and is well supported by reasons, observations and experiences.
17. The counsel for accused next contends that though some of the accused also sustained injuries, same were not explained by the prosecution and the defence version too was not considered which has prejudiced the accused's case.
18. Government Advocates, submit that the injury reports of three accused and two women have been tendered in Court. Despite opportunity, the accused neither crossexamined the witnesses nor they have proved these injury reports. Therefore, accused cannot be heard to say that the prosecution has suppressed this part of the case. The counsel further contends that the accused have taken no specific defence, except one of total denial. In such circumstances the contention of non-consideration of the defence version in specific terms, is untrue and an afterthought.
19. In Lakshmi Singh v. State of Bihar AIR 1976 SC 2263 : 1976 Cri LJ 1736, the Apex Court observed :. 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 or 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....
20. It is to be seen, in this case, if the prosecution has suppressed the 'genesis and origin of occurrence', by not presenting the true version of the case and further whether the witnesses have lied and the prosecution case itself is rendered doubtful.
21. From record, we find that the public prosecutor on 22-6-1983, placed on record the injury sheets of the three accused and two women. Since the investigating agency had closed the case filed by the accused (FIR 42/83) as not admitted, the investigating officer or the concerned Doctor were not, therefore, required to prove these injury sheets. Yet the Investigating Officer and the doctor were examined and deposed in Court as prosecution witnesses. However, the accused did not take any steps to ask any question in cross-examination from these witnesses regarding these injury-reports. Though the accused were given opportunity to produce documents thereto and case was adjourned for the purpose, yet they produced no documents and evidence thereto. It cannot be definitely said that the alleged minor injuries were received by the accused during the very brawl and altercation. The injuries are such which can even be selfinflicted. The trial Judge has given sufficient and plausible reasons while taking pains to explain that the prosecution was not required to show or explain the injuries, if any, sustained by the accused. We find that the defence is not at all prejudiced on this count. There has been no attempt on the part of the prosecution to suppress origin of the occurrence. The prosecution has placed before Court the true version of the occurrence. No prosecution witness has been even asked a single question of presence of any injury on the person of any of the accused. There is no defence version to explain injuries, if at all sustained by any of the accused.
22. We also find from record that the defence of the accused is one of total denial. In the statement recorded under Section 342, the accused have stated that the witness being relation of complainant and interested, their evidence cannot be believed. Further Gani Rather who was a patient of blood pressure died due to this ailment though doctors were influenced and prevailed upon to procure their wrong statements. Besides, the complainant is desirous to dispossess the accused from the situs of the occurrence. The fact situation and trend of cross-examination of prosecution witnesses do not reveal that this defence of the accused is supportable in the least. No defence evidence has been lead. However, this so called defence is not based on terrafirma. There is nothing on record to suggest that the medical evidence has been given under any coercion or undue influence. The medical report and expert opinion is objectively genuine and bears sign of truthfulness. Even, there is nothing on record to suggest that the deceased was suffering from blood pressure and died due to this cause. The site plans Ex. P9 and Ex.P8, as also the extract of the revenue record when read in juxta position with the statement of Jamal-ud-Din Patwari, PW-14 and other witnesses including the complainant and deceased's son, show beyond doubt that the deceased or the complainant party at no stage laid claim to the land in question. The deceased and his relations are not party to the civil suit and Sethi-indraj proceedings between the accused and Mst. Freechi and others. Neither deceased nor any of the witnesses has laid any claim over the land, the site of occurrence. They had no interest in the land and the altercation took place only because the deceased objected to the conduct of his own son Abdul Rashid, a lawyer by profession, in entering arguments and engaging himself in a brawl with the accused over the latter's act of planting trees-saplings on land, subject of civil suit, wherein, a status quo order was issued by the Court, against accused at the instance of party represented by said Abdul Rashid. Deceased or for that matter no person from the prosecution party threatened possession of accused over the land. In such circumstances, it cannot be contended that the defence version has not been considered. Despite opportunities, accused have not opted to examine any witness or to produce any evidence in defence.
23. The Government Advocate on behalf of the appellant-State, contends that the accused Sulla Hajam, Ali Hajam and Rashid Hajam as also Nazir Hajam merit conviction and sentence under Sections 148/149 read with Section 302, RPC, in so far as these accused along with Gani Hajam and Sabir Hajam were very much members of assembly which was unlawful as the common object of this assembly was to cause the homicidal death of Gani Rather and to force Abdul Rashid, a lawyer by profession, to abandon prosecution of the case on behalf of their adversary. For the purpose the accused in prosecution of the common object being armed with Dandas and having used force are guilty of offence of culpable homicide under Section 302, RPC as such members.
24. The defence counsel contests the submissions of the Government Advocate on the ground that the evidence tendered by the prosecution witnesses is contradictory and irreconcilable regarding formation of unlawful assembly and use of force by the other accused. The accused can be at the most convicted individually and not on constructive liability as members of an unlawful assembly. Though no Appeal has been filed by these accused, but in view of the appeal filed by the State, it is necessary to examine the evidence on this aspect of this case.
25. We have perused the evidence on record. PW-1, Wall Mohd Rather; PW-2 Abdul Rashid Rather; PW-3 Bashir Ahmad Rather; PW-4 Ghulam Ahmad Bhat; PW-7 Mohd Maqbool Rather and PW-9 Aziz Khandey; have deposed that after the accused Gani Hajam and Sabir Hajam dealt fatal blows on the head of the deceased, the other four accused namely, Sulla Hajam; Ali Hajam; Nazir Hajam and Rashid Hajam beat deceased severely. However, this version of these witnesses is quite opposite and parallel to the version of other two witnesses, Jalaluddin PW-10, unrelated independent witness and Mohammad Yousuf PW-11, son of the deceased in so far as, both of them deposed that the deceased was beaten and thrashed by four accused before Gani Hajam and Sabir Hajam landed two fatal Danda blows on the head of the deceased Gani Rather. Not only so, the Medical evidence no where mentions any injury on the person of the deceased, other than the fatal injury on his head dealt by the said two accused's Danda blows. The autopsy report and as also the injury-report speaks of the only said injury. PW-10 has even gone to the extent to say that the accused Nazir Hajam was busy in making holes for the trees-saplings while the other accused were engaged in an altercation with Abdul Rashid. In such state of evidence there is hardly any scope to implicate these four accused under Section 304, read with Section 149, RPC.
26. From evidence we find that the accused in possession of the land, while preparing trenches with 'Belchas', 'Liven' and 'Gaintees' did not use these agricultural tools. The two prime accused Gani Hajam and Sabir Hajam picked up dandas to strike the deceased, while opting not to use said Agricultural tools. There is evidence to probalise the version that there was a sudden fight between Abdul Rashid PW 2 deceased's son and the accused. No premeditation or preparation or any planning is seen there. It just happened at the spur of the moment, with tempers/emotions high. Obviously, in such sudden fight, Section 149, RPC is not applicable.
27. In Puran v. State of Rajasthan AIR 1976 SC 912, the Court observed that :-. In a case of sudden mutual fight between the two parties there can be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on accused. The accused in such a case can be convicted only for the injuries caused by him by his individual acts.
In the whole fact situation and tell-tale circumstances arising from record, on analysis and appreciation of evidence, the other four accused cannot be held guilty of culpable homicide amounting to murder of Gani Rather by the accused Gani Hakam and Sabir Hajam, as members of an unlawful assembly, since these four accused cannot be held to be sharing the common object of the other two accused of commission of offence of causing death of Gani Rather in prosecution of common object of such assembly. These four accused are not constructively liable for the offence committed by the other two accused, as member of an unlawful assembly within the meaning of Section 149 read with Section 141 of RPC.
28. We find sufficient and plausable reasons have been given by the trial Judge for conviction of the accused Sulla Hajam, Ali Hajam and Rashid Hajam under Section 323, RPC for having voluntarily caused hurt to PW 2-Abdul Rashid and acquitting the accused Nazir of the charged offences. As the three convicted accused under Section 323, RPC have not filed the appeal and are not before us, we leave matter here.
29. In result for aforesaid reasons we uphold conviction of accused Sabir Hajam under Section 304, RPC. Now comes the question of sentence.
30. The counsel for the defence submits that the sentence awarded to Sabir Hajam by the trial Court is on high side. The counsel also submits that the accused has been under the trauma of trial, conviction and sentence for last over 16 years. He has suffered much. The distant time of the commission of offence and the facts and circumstances of the case, may be taken into consideration and the Court may take a lenient view to reduce sentence of the accused.
31. The counsel Mr. G. Ali, GA, prays that the sentence awarded should be maintained. He conceeds that the accused has been in jail for over four years and that the case is of April, 1983. The accused has been in and out of jail in this case, is not refuted.
32. We have examined the matter. The accused were digging the holes for the treesaplings on land which they were in possession of. They were armed with 'Belchas', 'Liven' and 'gaintees'. The quarrel started suddenly. There was no premeditation or preparation or any planning of any assault. It happened in a spur of moment and tempers and emotions rose on both sides. Sabir Hajam and Gani Hajam did not use Belches, Liven and Gaintees. These agricultural tools compared to dandas, if used from iron edge side, can be 'deadly weapons'. The two accused struck the deceased Gani Rather with Dandas (sticks). Each of the two accused dealt just one blow on the deceased. Lodging of counter FIR 42/83 at Police Station Awantipora, reference of the accused for Medical Opinion and investigation of the matter, notwithstanding that the FIR was ultimately closed as not admitted, do speak that the parties were engaged in a mutual fight. Deceased bore just two injuries which he received on being struck with sticks, one each by the two accused. The altercation and the occurrence started with deceased's son Abdul Rashid PW 2 provoking the accused by reminding them of status quo order in a civil suit, in which case this witness was representing the party opposed to the accused. Even, some Sethi-indraj proceedings were pending before the Tehsildar Tral in respect of the land. All these circumstances indicate that the accused-appellant before us had no intention to cause death, or causing of such a bodily injury as is likely to cause death. This accused can be attributed with the knowledge that his act of dealing a blow with the stick on the deceased head was likely to cause death or in any case such head injury was likely to cause death. No history or antecedent of the appellant-accused are on record or brought to our knowledge to suggest that he has any adverse record. In such circumstances, having regard to the magnitude, seriousness and gravity of the offence, the origin of the occurrence and the nature of the crime committed and the elongated time span of over 16 years which has intervened since occurrence and other relevant extenuating circumstances having bearing on the question of punishment, we deem it just and proper, to reduce the sentence and punishment of the accused appellant for four years and one month Rigorous imprisonment, the period already undergone by the accused, under Section 304-Part-II, RPC, as the same would serve the ends of justice. The period of detention/imprisonment suffered by accused in this case is set-off against the sentence and punishment awarded.
33. Cr. Acquittal Appeal 28/1985 is dismissed with above modification in sentence and punishment. The Criminal Appeal 6/1985 of Sabir Hajam is dismissed with above specified modification in sentence and punishment. The Appeal of accused (sic).