MOHAMMAD SHAFFI Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) Appellants have challenged their conviction and sentence recorded in the impugned judgment and order dated 28-7-1995, passed in File No. 59/Session by the learned Addl. Sessions Judge, Jammu, whereby appellants Mohd. Shaffi and Mir Hussain have been convicted under Ss. 302, 325, 148, 323 read with S. 34, RPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000 each under S. 302, RPC and further sentenced to undergo rigorous imprisonment for a period of six months under S. 325, RPC; three months under S. 148 RPC; and three months u/S. 323, RPC and to pay a fine of Rs. 500 each on each count. Appellants Sadiq Gani, Mir Hussain (S/o Haji Sain) and Nikka have been convicted under Ss. 447, 323, 325 and 148, RPC and sentenced to pay a fine of Rs. 500 on each count and in default whereof to undergo simple imprisonment for one month on each count. Appellants Varid Bakashi, Binia Meen, Lal Hussain and Kachha, have been sentenced to undergo rigorous imprisonment for six months each and to pay a fine of Rs. 500 each under S. 323, RPC and further to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500 on each count under Ss. 447, 323, 148, RPC and in default of payment of fine to undergo further rigorous imprisonment for a period of one month on each count.

(2.) Brief facts of the prosecution case are : that on October 18, 1989, at about 2 p.m., Ashok Kumar victim was ploughing the land covered by Survey No, 306 measuring 37 kanals, 12 marlas situate in village Umera (Khoon) of tehsil Ramnagar, owned and possessed by his father Nanak Chand. The accused armed with deadly weapons entered the said land and attacked Ashok Kumar. Accused Mohd. Shaffi inflicted assault with Tabbar on the head of the deceased with the intention to kill him and the rest of the accused inflicted lathi blows resulting in serious injuries. On intervention by his father Nanak Chand, Puran Chand, Parmanand, Satya Devi, Surjo and Vimla Devi, who arrived on spot of occurrence to save Ashok Kumar, accused assaulted them also with lathis and inflicted injuries to them. Ashok Kumar was shifted to hospital where he succumbed to his injuries. PW Nanak Chand, father of the deceased-Ashok Kumar, lodged a report in Police Station, Majalta on the same day and accordingly a case under Ss. 307/447/148/149, RPC and 4/27 of the Arms Act was registered at 3 p.m. which was subsequently converted to under S. 302, RPC on the death of Ashok Kumar. The prosecution collected the evidence and filed challan for prosecution of the accused. The accused pleaded not guilty and were accordingly charge-sheeted and tried.

(3.) P.W. Nanak Chand has stated in his statement that he is the owner in cultivating possession of the land under Survey No. 306. Before a month of the occurrence he came to know from one Khem Raj that the accused-appellant Mohd. Shaffi and Mir Hussain have got the land along with house situate in the said khasra number, entered in their names by correction of record of rights and also verified from the Patwari. He preferred an appeal before the Assistant Commissioner, Udhampur against the correction of record in the names of the accused. He told this fact to Mohd. Shaffi who told him that perhaps his son has got the land entered in their names. On the day of occurrence i.e., October 18, 1989, at about 2 p.m., he was sitting in his courtyard when Ashok Kumar-deceased and P.W. Puran Chand along with bullocks, went to the disputed land for ploughing. After 5/10 minutes, he heard voice of Mohd. Shaffi speaking in a loud tone. When he heard the second voice, he ran towards the land and saw that accused Mohd. Shaffi and Nikka were standing with lathis in the said land. Mohd. Shaffi was having sharp edged Tabbar and Nikka having a lathi. He enquired from Shaffi that he had promised that he will get the record corrected and why today he has come in the land having lathi in his hands. Thereupon Shaffi-accused told him that the land is in his name and he will not permit them to plough it. He went to PW Rameshwar Bali and brought him on spot as the promise of correction of record of land was admitted by the accused in presence of PW Rameshwar Bali. In the meantime, PW Hans Raj also came on spot. According to the witness, Rameshwar Bali asked Mohd. Shaffi that when he has admitted that he will get the record corrected but instead of that why they have come with lathis today. In such moments Mohd. Shaffi whistled and 9 male and 3 female accused persons surfaced from bushes and the street and came on spot armed with lathis except female accused who were empty handed. The accused- Mir Hussain pointed to the other accused persons that let Ashok Kumar be finished in the land. At that time deceased-Ashok Kumar was ploughing the land. Ashok Kumar ran towards the west and hardly when he had moved 5/7 ft. away, accused Mir Hussain s/o Kalu struck a lathi blow on his head. In the meantime Mohd. Shaffi hit him with Tabbar on his head. Ashok Kumar fell unconscious. Mir Hussain further inflicted lathi blow on the left arm of PW Nanak Chand whereas Lal Hussain, Ali Hussain and Nikka-accused each inflicted lathi blows on the left shoulder, waist and on legs of PW Nanak Chand. Thereafter when Mst. Satya Devi was trying to lift Ashok Kumar, accused Sadiq inflicted lathi blow on her right arm and also other accused beat her. The accused also pelted stones on them. Ashok Kumar was taken to Majalta hospital from where he was shifted to Jammu hospital where he died on the same day at about 3-30 p.m.