JABBAR DAR Vs. STATE

JUDGEMENT

(1.) SIXTEEN accused persons, including the present appellant, Jabar Dar, were committed to Sessions to stand their trial under various sections of the Penal Code. Out of these 16 accused persons, 15 have been acquitted by the learned Sessions Judge, Srinagar, on the ground that the injuries inflicted by them upon the members of the complainant's party were in exercise of their right of private defence. Jabar Dar, the learned Sessions Judge has held, is not entitled to the benefit of the plea of self-defence. He has convicted him under Sections 304/326/324, R. P. C. and sentenced him to undergo rigorous imprisonment for five years, two years and one year respectively, the sentences to run concurrently.

(2.) THE allegation of the prosecution is that a plot of land belonging to one of the accused persons, Sultan Lone, was mortgaged with one Aziz Wagey. On an application under the Restitution of Mortgaged Properties Act, the mortgagor accused secured an order for the restitution of the mort-gaged land in pursuance of which it is admitted that possession of the said plot was given to him by the Patwari. The story proceeds that the fruit of the tree:: standing on this plot of land was sold by the mortgagor to Jabar Dar accused. On 24th Har 2011, Jabar Dar and others accused persons, the prosecution adds, having armed themselves with some lethal weapons like hatchets, Dandas and Lathis. Jabar Dar himself being armed with a gun proceeded towards the disputed plot of land for the purpose of fencing it when they were stopped by the party of the complainant Aziz Wagey, who had assembled in a shop situate on the road which led to the disputed plot of land. We have it in the prosecution evidence that the tempers of the parties had run very high and their passions had reached white heat. The complainant's party had also, as it would just appear, made it a point of honour to stop by any means and methods the accused's party from giving effect to their purpose. The allegation proceeds that when the accused's party reached near the shop, the complainant's party came down and stood in the way of their proceedings to the plot in question. It is said that the complainant's party entreated the accused persons to go back and not proceed further or else bloodshed would be the result. This entreaty or warning on behalf of the complainant's party, it is alleged, went empty, with the result that a tree fight ensued between the parties. The prosecution case is positive on the fact that the complainant's party was unarmed and the only weapon which they used was the weapon of entreaties and supplications in a mood of humility. But as against this, it is alleged that the accused persons were aggressive with highly inflamed tempers. The prosecution story after having undergone some gradual changes which will be discussed at its proper place, finally evolved itself into that the complainant's party having done all that was legitimately expected of them to do to stem the tide of aggression by the accused persons, were be laboured with lathis and hatchets and it was at the intercession of one Lassi Lone that the parties were separated from each other. Then it is alleged that Samad Lone, one of the focused persons, who was standing there instigated the present appellant Jabar Dar that he should use his gun or else it was useless for him to have carried it. The prosecution wants us to believe that this exhortation by Samad Lone, as it were, galvanized Jabar Dar into action with the result that he started shooting. The first shot is said to have been aimed at Lassi Lone who having been injured fell down. Then another person belonging to the complainant's party by name, Qadir Wagey, is said to have been aimed at and hit by the accused, Qadir Wagey died as a result of gun shot wound. Then the accused is said to have fired a third time which injured a number of persons. It may be Mated here that Jabar Dar's gun was a single barrelled gun in which Chara (grape shot) is used.

(3.) THIS in main is the prosecution case. The accused Jabar Dar has not denied his presence on the place of occurrence nor has he denied that he three times, but he denies that there were two incidents: one ending with the intercession of Lassi Lone and the other starting at the point when Samad Lone instigated Jabar to use his gun. He asserts that there was one single fracas which was the result of a mighty preparation made by the complainant's party to stop the accused persons to go to their plot of land and that having been mercilessly belaboured by the complainant's party and also by the attempts made by Lassi Lone to snatch away the gun from his hand, he was constrained to fire two shots in self-defence and a third shot in the air to scare away the complainant's party. It goes without saying that if a gun has been used y Jabar Dar with fatal effect after the quarrel Lad ceased as a result of good offices of Lassi Lone. , no plea of self-defence will be available to him, and that he would be simply guilty of murder Under Section 302, R. P. C. Naturally it is necessary for us lo firstly see as to whether the prosecution story as it has finally evolved, is the correct version of the incident or incidents which have taken place that day.