LAWS(J&K)-2000-1-1

GUL LONE Vs. STATE OF JAMMU AND KASHMIR

Decided On January 22, 2000
GUL LONE Appellant
V/S
STATE OF JAMMU AND KASHMIR Respondents

JUDGEMENT

(1.) JUDGMENT :- 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 21/2 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 under 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.

(2.) 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. 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 S. 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 Ss. 34 and 149. 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.) . Another fallacy from which the judgment suffers is that even though charge u/S. 302 read with S. 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 S. 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:-