REHMAN TANTRAY Vs. STATE

JUDGEMENT

(1.) SONA Tentray, Ahmad War, Assad Tantray, Rehman Tantray Ali Tantray, Ahamd Tantray, Khzir Tantray son of Hibab, Wali Mir Yousiff War and Habib were sent up for trial before the learned Sessions Judge, Kupwara for offence under section 302, 302/149, 148, 325, 325/149, 323 and 323/149 R. P. C. The learned trial Judge convicted Sona Tantray, Ahmad war and Assad Tantray for the offence under sec, 302 R. P. C. and sentenced them to suffer imprisonment for life. The remaining accused were convicted for the offence under sec. 302/149 R. P. C. and while Wali Mir was sentenced to suffer rigorous imprisonment for 10 years, the remaining accused were sentenced to suffer rigorous imprisonment for 7 years each for the said offence. Sona Tantray and Assad Tantray were also convicted for an offence under sec. 325 R. P, C. and sentenced, to suffer one years rigorous imprisonment. The remaining accused were convicted under sec. 325/149 R. P. C. and sentenced to suffer rigorous imprisonment for six month each All the accused were further convicted for the offence under sec. 148 R. P. C. and sentenced to six months rigorous imprisonment. All the accused, except Ahmad war, were also convicted for the offence under sec. 323/149 R. P, C. and sentenced to 15 days simple imprisonment. Ahmad war was convicted for an offence under sec. 323 R. P. C. and sentenced to suffer one months rigorous imprisonment. The learned Sessions Judge also sentenced Ahmad war Sona Tantray assad Tantray to pay a fine of Rs 500/ - each. Wali Mir was sentenced to pay a fine of 200/ - and the remaining accused to pay the fine of Rs. 100/ - each. In default of payment of fine Ahmad war, Sona Tantray and Assad Tantray were to undergo further imprisonment of simple nature for two months each while the remaining accused were to suffer simple imprisonment for 15 days each, the convicts have filed this appeal challenging their conviction and sentence. The learned Sessions Judge has also made a reference to this court for the confirmation of the sentence of life imprisonment imposed upon Sona Tantray, Ahmad War and Assad Tantray. This judgment will dispose of both, the criminal appeal filed by the convicts and the reference made by the learned Sessions Judge.

(2.) AT the very out set, we may observe that the only sentence known to law for an offence under section 302 R.P.C., even if read with section 34 or 149 R.P.C. is death or imprisonment for life. It is strange that Shri G. N. Gowhar, a judicial officer of the standing of a Sessions Judge should be ignorant of this provision, for; in this case,7 accused, other than Sona Tantray Ahmad War and Assad Tantry, have been sentenced to suffer imprisonment for seven years and 10 years (Wali Mir) for the offence under sec. 302/149 R. P. C. The sentences so imposed are a sad reflection and commentary on the knowledge of law of the Sessions. Judge. This is not all The learned Sessions Judge has, after convicting the accused persons for various offences, also directed the imposition of fine of Rs. 500/ - each on Ahmad Waar, Sona Tantray and Assad Tantray, of Rs. 200/ - on Wali Mir and Rs.100/ - on each of the remaining accused. We have searched but invain for the offences for which these fine have been imposed by the trial Judge. Imposition of fine has to be relatable to conviction for a particular offence but in the instant case there is no indication about the offence/ offences for which fines have been imposed it is obvious that the Sessions Judge has not only depicted lack of knowledge of law but has also exhibited his non -application of mind while deciding the case. The least that can be expected of a judicial officer is that he would apply his mind fully while deciding cases more particularly, when the case involves life and liberty of a citizen We would not like to say anything more on this aspect, though much can be sand, but direct that a copy of this judgment shall be placed on the personal file of the Sessions Judge.

(3.) , Coming now to the facts of the instant case. According to the prosecution story, on 23rd of May, 1976, at village Dhama Faqir Pora, District Kupwara, an occurrence took place in which one Hassan war suffered a head injury, to which he later on succumbed in the hospital. Gaffar war and Mohd waar also received grievious injuries while Gani war is alleged to have received simple injuries on his thigh and hip in the said occurrence. It is alleged that a bull belonging to Ahmad war stayed into the field of Gaffar War P. W. and caused some damage to his crop. An altercation ensued, as a result thereof, between Gaffar war and Ahmad war Ahmad War is then alleged to have left for his house and later on returned to the place of occurrence with the remaining aucused, variously armed with sticks, axes, and yatafaris. The accused persons are then alleged to have opened an attack on the complainant party causing injuries to Hassan Waar deceased. Gaffar waar Mohd war Gani war. The incident was reported to the police and an FIR. Ex.P.A. came to be registered at the instance of Abdul Khaliq war son of Gaffar war on 23rd of May; 1976 at 5 -40 P.M. at police statin Wilgam. The investigation was taken in hand by Ghulam Rasool Wani S.H.O., who reached the spot soon after the registration of the case and got the injured removed to the Hospital. He also prepared the site plan and later on seized the blood stained earth as well as the axes and dandas. Hassan war died in the Hospital at Baramulla on the next day. Autopay on his death body was performed by Dr. S, M. Rafiqi. According to the postmortem report Ex. P. M. 9. the deceased died due to "coma secondary to severe head injury " Dr. Rafiqi had found an injury on the left parietal region. He described the said injury as a small contused lacerated would over the left parietal region of skull 1. to the left of mid line about 1/2 cm, The wound was 5cm deep and was bleeding. The Injury had caused fracture of the skull bone beneath the site of the wound. The injury was ante -mortem and had also been noticed by Dr, Mohd Yasin who had first examined the deceased and referred him to the hospital at the Baramulla, The Medical witneses had also examined the other injured prosecution witnesses and gave a description of their injuries. Gaffar waar had received grievous injury in as much as his nasal bone had been fractured, Mohd Waar had also received a grievous injury on the right side of his head. Gani waar had received simple injuries on his left thigh and hip. With a view to connect the accused with the crime, the prosecution examined Mukhata Mir, Lassi Mir, Ashrif Mir, Mjhad Mir, Mohd Dar, Ashraf Dar Gaffar Waar, Mohd waar and Gani waar as the eye witnesses, Certain other witnesses before whom recoveries and seisures had taken place besides the investigating officer Ghulam Rasool Wani S,H.O and Ghulam Rasool Circle Inspector were also examined the patwari was examined on behalf of the prosecution to establish the ownership of the filed where the fight is alleged to have taken place, and to prove the site plan and the revenue record. The accused were examined under sec, 342 Cr, P, C. and they set up a rival version but did not dispute that an occurrence had taken place at the time and place alleged by the prosecution, 3. A Out of the eye witnesses, named above, Mohd waar P.W, stated that he had only heard about the incident and had not himself witnessed the occurrence. He therefore cannot be called an eye witness,