JAGAN NATH Vs. STATE OF J&K

JUDGEMENT

(1.) THIS Criminal Appeal is directed against the judgment and order dated 31.1.2002 passed by learned Sessions Judge, Udhampur, whereby appellants have been convicted and sentenced to imprisonment already undergone with fine of Rs. 5000/ - each, in default whereof to undergo imprisonment for six months. However, on realization of the fine amount, Rs. 30,000/ - has been directed to be paid as compensation to complainant Bashir Ahmed.

(2.) STATE has also filed two separate acquittal appeals. Acquittal Appeal No. 14/2002 has been filed against the acquittal of the accused Amar Nath, whereas Acquittal Appeal No. 3 -D/2002 has been filed to convict and sentence the accused for commission of offence under Section 302 RPC instead of Section 304 Part II R.P.C as ordered by the trial court.

(3.) THE prosecution story is that on 4.11.1984 at about 9 a.m when the complainant party, who had already constructed a Kulli ( a room having straw roof), was raising construction of a kotha ( kacha room with clay and timber roof ) in the land measuring 37 kanal and 18 marlas bearing survey No. 300 situated at village Badola, on which land both the parties claim their possession, appellants committed trespass in the land of the complainant, attacked the complainant party, inflicted injuries to Roshan Din with lathies, as a result thereof he succumbed to the injuries whereas Bashir Ahmed, Shamas Din and Ghulam Rasool also received injuries in the same incident. Police registered FIR No. 287 of 1984 at 10.15 p.m and started investigation. Bashir Ahmed, injured was admitted in hospital at Udhampur and the dead body was taken to hospital for postmortem. Statement of complainant Bashir Ahmed was recorded on 5.11.1984, who stated that land measuring 37 kanal 18 marlas under survey No. 300, 3002/1 and 306, situate at village Badola is the property of his grand -father who has migrated to Pakistan. The disputed land has been kept on his superdari by the Custodian Evacuee Property (hereafter the Custodian  ) vide his order dated 8.11.1980. He also stated that he is in cultivating possession of the land and paying Rs. 27/ - as annual cess to the Custodian. Before his possession over the land, accused Amar Nath and Kaku sons of Jagtu were in possession. The Evacuee Property Department evicted them and he, being heir of his grand -father, possession of land has been handed over to him on Superdari. Dispute with regard to possession is going on between him and Amar Nath and others in the court since 8 to 10 years. On 4.11.1984 at about 12 noon/1 p.m, while he and his father Roshan Din, his wife Nasima, Shamas Din S/O Ghulam Rasool and Ghulam Rasool S/O Sain residents of Rakwala and Mushtaq Ahmed, Shah Mohd sons of Taj Din, were constructing a Kotha in the land, 11 persons, including the accused, with pre -planed common criminal intention to kill the complainant, trespassed into the land and attacked them. Complainant Bashir Ahmed, Roshan Din, Shamas Din and Ghulam Rasool, who were present on spot, were assaulted with Tabar and lathies. His wife Nasima raised noise, on which some residents of the village came on spot and in the meantime the accused ran away. While running away the accused demolished the Kulli and committed theft by taking away 2 rifles ( one double barrel and one single barrel) which the complainant had kept in it. They also took away 20 blankets, two bed covers, 4 Cults, three pillows, 2 Sabbals (iron rods), one shawal, one ghenti (instrument of digging clay), one kudal, three draties of sharpe edge, 4 axes, one hammer, one cheni, one hand saw, one steel pot, one lamp, one radio set 2 band sanio make, one silver kadai, 2 thalies, 4 kolies, 2 glass silver, one Huka (hubble bubble) 4 baskets, one tin, one torch, one packet cartridges, 250 grm gun powder and six live cartridges. After recording his statement investigation commenced.