State vs Gani Bhat and Others

Syed Bashir-ud-din, J.—Respondent-accused have been tried in session's case 19 of 1984 by District & Session Judge, Anantnag, on

charges of culpable homicide amounting to murder, criminal tres-pass, house breaking, rioting and causing simple injuries as members of unlawful

assembly under Sections 302, 147, 148, 149, 323, 447 and 452 R.P.C. The trial court on conclusion of the trial convicted two accused-

respondents Gani Bhat and Bashir Bhat u/s 326 read with Section 34 RPC and acquitted them of all other charges. The two accused have been

sentenced to nine months simple imprisonment and fine of Rs. 5000/- each and in default of payment of fine the accused are ordered to undergo

further simple imprisonment for a period of two years. The fine is ordered to be paid to the widow or Legal Representatives, (as the case may be)

of the deceased by way of compensation. The other three accused have been acquitted of the charge. This order of conviction and sentence has

been passed on 31.3.1998.

This conviction, and sentence and acquittal is challenged in this appeal by the State of J&K. The two accused convicted and sentenced as

above have not preferred any appeal.

On 29.4.1984 at village Shorat, Tehsil Kulgam parties (who happen to be relatives residing close by to each other) called Ahli Bradari (village

elders) for a meeting to go into and settle accounts between parties over some money matter. The meeting was held in the house of deceased

Mohd. Shaban Dar. Besides others it was attended by Gani Bhat and Naba Bhat from accused side and the deceased. During the course of the

meeting parties exchanged hot words and raised their voices. Gani Bhat emerged out of the meeting room followed by his brother Naba Bhat. No

sooner he reached the 'Sahankhanah"", where their other two brothers Yousuf Bhat and Bashir Bhat with sister Hafiza were waiting to hear about

the out-come of the meeting, Gani Bhat, asked his brother to fetch the weapon, so that he could do away with the deceased Mohd. Shaban Dar

and teach lesson to him and his family. Bashir Bhat went away to return after a while with 'DRATH' and 'AXE' Bashir Bhat kept drath to himself

and gave axe to Naba Bhat. In the meanwhile, deceased Shaban Dar had also come out of the room and was on the make-shift ladder. Gani Bhat

gave him a stick blow on his head while Bhasir Bhat hit him on his face with 'drath' and caused injury on his nose and eye. The accused are stated

to have also bet deceased's sons Gh. Mohi-ud-din Dar, Mohd. Iqbal Dar and Maqsood Dar beside s entered the deceased's kitchen to beat and

injure Mrs. Hajra deceased's wife. Injured Mohd. Shaban Dar was taken first to Hospital Kulgam after the first information report (Expwl/1) was

lodged by deceased's son Gh. Mohi-ud-din Dar with P/s Kulgam. The deceased was referred to District Hospital Anantnag and from there he was

referred to and hospitalized in SMHS (ENT Ward) at Srinagar where he ultimately died on 14.5.1984.

Police registered the case FIR No. 35/84 at P/s Kulgam. After taking required investigative steps including spot inspection, preparation of site

plan and seizer memos, recording of disclosure statement and drawing up of recovery memo, recording statements of witnesses u/s 161 Cr. P.C.

and collection of injury and post-mortem reports and on completion of the investigation, the investigation officer filed a report (challan) in court.

The accused were charged for the aforementioned offences, to which each of the accused pleaded not guilty. Prosecution led evidence Trial lasted

over number of years. It ended in conviction and sentence of the two accused Gani Bhat and Bashir Bhat u/s 326 read with Section 34 RPC and

in acquittal of these two accused of all other charged offences and of remaining three accused of all the offences with which they were charged.

The state Government feeling aggrieved has challenged the conviction, sentence and acquittal of the accused as above on the ground that the

prosecution evidence has been mis-read and not appreciated in correct perspective in respect of the accused. The guilt of accused is proved by

evidence on record. Culpability of the accused in the occurrence is made out by depositions of number of eye-witnesses, corroborated by the

medical evidence and other circumstances/real evidence on record. Due weight has not been attached to the evidence. The guilt of the accused is

proved beyond reasonable doubt. The two convicted accused under Sections 326/34 RPC should have been convicted u/s 302 RPC alongwith

other accused on the basis of vicarious criminal liability as ex-pounded by Section 149 RPC.

The sentence awarded u/s 326/34 RPC to the two accuseds Gani Bhat and Bashir Bhat by the trial court is not adequate to serve cause of justice

and law.

We have heard learned counsel for the parties on all aspects of the case. The counsel have taken us through record.

The standard of proof in a criminal cases is epitomised with the phrase, ""proof beyond reasonable doubt"". After all freedom and liberty of

subject is involved in a criminal case therefore, the probf has to be 'beyond reasonable doubt'. Reasonable doubt is a fair doubt, based on reason

emerging from evidence on record. It goes without saying that the primary burden of proving the prosecution case beyond reasonable doubt is

through on the prosecution. Keeping this norm of proof in view, the burden on accused compared to prosecution, is muchless and such onus can

be discharged by establishing preponderance of probabilities. The case can be said to be proved only when there is certain explicit evidence. See

Dr. N.G. Dastane v. Mrs S. Dastane AIR 1975 SCL 1534 Sawal Das Vs. State of Bihar, Sharad Birdhi Chand v. Sarda AIR 1984 SC 1624 and

State of U.P. Vs. Krishna Gopal and Another,

The first and foremost question to be considered is whether accused can be said to have formed an unlawful assembly having the common

object, in composing such assembly, to commit the offence(s) in question. An assembly of persons is unlawful if the number of persons composing

the assembly is five or more and the common object of the persons so composing the assembly is one as specified in Section 141 of RPC. There is

ample evidence to show that the accused did not form the unlawful assembly and common object of the persons forming the assembly was not to

commit any offence or any other act which answers the description of the act provided u/s 141 RPC. Hafiza sister of other four accused was

waiting for her brothers in the deceased's compound, who otherwise was her maternal uncle. Prosecution witness Mst. Hajra deceased's wife and

Gh. Mohi-ud-din Dar deceased's son as also the other three independent witnesses Massed Ahmed Dar, Mohd Yousuf Padder and G. N. Wani

have not pointed or named her to have taken part in any manner in the occurrence. Even in FIR no overt or covert act is attributed to her and she

is not named to have taken part in the occurrence. Merely because she was in the compound to await the out-come of the meeting, of her brothers

with her maternal uncle in presence of ""Ahli Braderi"" would not make her member of the assembly muchless unlawful assembly. The evidence is

wholly lacking to show that she was part of any unlawful assembly. There is also no evidence to show that there was any common object to kill or

injure the deceased or any other person on spot or to commit any other offence. In her case the criminal trespass is not at all made out. She could

not be held vicariously liable for the penal acts of the accuse. She was not armed with any weapon and even when Gani Bhat and Bashir Bhat

struck deceased and beat deceased's wife and sons she did not indulge in any sort of overt or covert act. She did not at all participate in the

occurrence. Even for that matter yousuf Bhat and Naba Bhat accuseds have not as well taken any part in any action against the deceased and his

family members. Even though Naba Bhat was given axe which was in his hand, yet he did no overt act and much less use the axe against accused

or any one else. He did not participate in the occurrence. All this unequivocally shows that these accused were not the persons composing the

assembly whose object was to commit any offence and that they did not share common object of commission of any offence with the other

accused. They cannot be regarded as members of the assembly. If so the number of persons falls short of five and obviously one of the ingredients

of the offence as defined in Section 141 RPC, made penal by other Sections including Section 149 in Chapter VIII of RPC, is missing.

It cannot be also said that the accused shared any common object so as to make the assembly unlawful. Only two brothers Gani Bhat and

Bashir Bhat took part alongwith the deceased, in the meeting conveyned to settle the accounts interse the parties. During this period the other two

accused with their sister were sitting in the compound of the deceased. Their motive and object, as shown by scrutiny of evidence on record was

to wait for their brother and to know the precise out-come of the meeting held under the auspices of the 'Ahli Braderi' and no further. It was in the

midst of the meeting when Gani Bhat lost temper and in a fit of rage came out of the room followed by his other brother Naba Bhat to ask his other

brothers to get the instruments. It was at this stage that Bashir Bhat went away to return with 'Drathi' and 'axe'. He kept 'Drathi' to himself and gave

axe to naba Bhat. Naba Bhat did not use axe or in any way took part in the occurrence. Yousuf Bhat and also Hafiza did not participate. It was

only Gani Bhat and Bashir Bhat who used the stick and drathi to give one, blow to each on the face and fore-head of the deceased besides

belaboring deceased's wife and sons. In such circumstances it cannot be said that their common object was to commit offence(s) or even cause

injury to deceased or any member of his family.

These accuse came to deceased's house only for purpose and with the object of participating or in any case to see the out-come of the

exercise to be undertaken of resettlement of accounts between the parties in presence of 'Ahli Bradheri'. The parties have been closely related.

Deceased was accuseds matrimonial uncle. While Gani Bhat and Naba Bhat physically took pat in the meeting in complainant's house, the other

two brothers and sister accused waited in the compound. There is no evidence to indicate that their entry or stayal in the compound was intended

to commit any tres-pass or any offence. It can be fairly concluded that their entry in the house and the compound was with the consent of the

deceased. Only after Gani Bhat emerged out of the room with frayed tempers and enraged that he asked his brothers to get the instrument. It was

at the stage that Bashir went and returned with drathi and axe followed by occurrence in which Gani Bhat and Bashir took part. The entry or stay

of the other accused in the deceased compound cannot be said to be with intent to commit any offence or intimidate or insult the decease or his

family or to commit any criminal trespass.

Viewed thus the charge of criminal trespass as also forming of unlawful assembly and commission of offence by the members of such assembly

so as to inculpate the accuseds vicariously u/s 149 RPC is not brought home to the accuse beyond hilt. The finding of the District & Session Judge

on this count cannot be found fault with or said to be vitiated.

The next question is whether in the facts and circumstances, as above, all the accuseds can be held guilty of causing fatal injury to Mohd.

Shaban Dar and injuries to his sons and wife. If not, then the liability of accused who is proved to have caused the injury(ies) has to be determined.

The culpability for offence(s) with which accused is/are charged has to be determined on evidence on record.

Form evidence of the prosecution witnesses Ghulam Mohd Dar complainant, Iqbal Dar, Maqsood Dar and Mst. Hajra (sons and wife of

deceased Mohd. Shaban Dar); Mohammad Yousuf Padder and Ghulam Nabi Dar, the eye-witnesses to the occurrence, it is established that Gani

Bhat, Naba Bhat, Bashir Bhat, Yousuf Bhat and their sister Hafiza came to deceased's house for settlement of accounts interse deceased Mohd.

Shaban Dar and these accused, at a time when members of 'Ahli Baradari' were also requested to show up and under their auspices the meeting

took up the settlement of accounts. While Bashir Bhat, Yousuf Bhat, and Hafiza were camping in the compound, Gani Bhat and Naba Bhat were

up stairs in the house for the meeting. In the meetings besides deceased and the two accused, prosecution witnesses Mohd Yousuf Pader, Ghulam

Nabi Dar, Ahmad Dar, Gh. Ahmad Parray, and Mohd, Abdullah besides others were present. The parties exchanged hot words. An altercation

between Gani Bhat and deceased took place Gani Bhat accused left the meeting and emerged in compound and in a fit of rage asked his brother

to fetch the instrument. Bashir Bhat who was in the compound went away only to return with 'Axe' and 'Drathi'. Bashir Bhat kept 'Drathi' to

himself. He gave 'Axe' to Naba Bhat. On spotting deceased Mohammad Shaban Dar, on the make-shift ladder, Gani Bhat accused struck him

with a lathi blow and dragged him down. Bashir Bhat on call by his brother Gani Bhat, hit the deceased with 'Drathi' on his face, resulting in

fracture of his nose and injury to his eye. Deceased fell down and bled profusely. In the meantime, spotting Hajra, deceased's wife in the kitchen,

Gani Bhat accused dashed forward to give her blow on her fore-arm after forcing his entry in the kitchen. The sons of the deceased, Ghulam

Mohiud Din Dar complainant, Iqbal Dar and Maqsood Dar also are stated to have sustained injuries. The accused thereafter are reported to have

left the scene. The deceased Mohd. Shaban Dar was carried first to hospital at Kulgam and then to Anantnag and finally to SMHS Hospital

Srinagar, where he died. There is no evidence as stated above that Naba Dar accused though having been handed over 'Axe' by co-accused

Bashir Bhat, took any part in the incident. He Yousuf Bhat and Hafeeza did not in any manner took part in the occurrence. Non of the three did

any overt or covert act, while Gani Bhat and Bashir Bhat assaulted and injured the deceased and his family members as above.

Dr. Nazir Ahmad, Medical Officer Kulgam who examined the deceased Mohd. Shaban Dar, his wife Hajra and his son Iqbal Dar has

deposed to injury reports/medical certificates EXPW 18/3 18/2 and EXPW 18/3 to state that the injuries in question were found on the person of

these individuals. It is in his evidence that there was an incised wound on the front side of nose at the level of bregma with under-lying bone

exposed, laceration on lower eyelid and contusion on left side of scalp on front region of Mohd Subhan Dar. He has opined that first two injuries

could have been caused by a single blow of a sharp edged weapon.

Dr. Rouf Ahmad, House Surgeon of SMGS Hospital has also deposed to the very injuries which be found on the person of Mohd Shaban Dar

as certified and stated in EXPW 19/1 and EXPW 19/2. Dr. Abdual Aziz has also deposed in the same vein. Radiologist Dr. Mohd. Ashraf, who

conducted Radiologist examination of Mohd Shaban Dar's nose has deposed to his certificates EXPW 21/1 and EXPW 21/2 had stated on oath

that nose bones of Mohd Shaban Dar were fractured into pieces.

Dr. Ghulam Mohd Ganai who conducted autopsy on the person of the deceased Mohd Shaban Dar, has deposed no differently and testified

to the postmortem report EXPW 22/1 and also identified the weapon of assault 'Drath' EXPA. He has opined that the injury in question could be

caused with 'Drath' EXPA, recovered vide memo EXPW 2/2 on the disclosure statement of co-accused Yousuf Bhat. This disclosure statement

EXPW 2/1 is proved by prosecution witnesses Ghulam Mohiuddin Dar, Iqbal Dar and Abdul Gani Wani. Dr. Ghulam Mohd Ganai on post-

mortem examination of body of Mohd Shaban Dar has opined that fracture of nosal bone was not sufficient in itself to cause the death in the

ordinary course of nature and it has not caused death in this case. Instead the death is caused due to profuse bleeding.

Dr. Rouf Ahmad, House surgeon under whose charge in ENT Ward of SMHS Hospital, deceased died has opined that Mohd. Shaban Dar

died due to cardiac problem, and not because of the after effects of the nosal injury. Dr. Abdul Aziz, who also examined Mohd Shaban Dar has

found Mohd Shaban Dar a hypertension patient besides a case of nosal fracture.

So far as injuries on person of Hajra are concerned, there is certificate EXPW 18/1, of Dr. Nazir Ahmad, who has deposed that the injuries

on right side of scalp of Hajra were simple in nature caused by a blunt weapon. He has also stated that incised wound on scalp and check of

Mohd Iqbal Dar as explained in EXPW 18/2, is also simple in nature and caused by blunt weapon. These simple injuries on the person of Hajra

and Mohd Iqbal Dar have been deposed to by prosecution witnesses Gh. Mohd Dar, Mohd Iqbal Dar and Hajra, herself. The other witnesses,

Maqsood Dar, Gh. Mohd Wani and Mohd Yousuf Paddar and Ghulam Mohd Dar have all stated that they found Hajra injured on spot. This

evidence oral as well as medical with other facts and circumstances appearing on record, fully established that Hajra as well as Iqbal Dar were

injured. As per the statement of Hajra and Maqsood, it is Gani Bhat who hit and injured them. He also forced entry in kitchen and beat Hajra. The

evidence of Gh. Nabi Wani, Mohd Yousuf Paddar and Gh. Nabi Dar too is corroborative in nature in as, mush as they have found Hajra and her

sons, injured on spot. Abdul Gani Wani, Mohd Abdullah Dar, Mohd Yousuf Padder and Ghulam Nabi Dar, all independent witnesses have

supported the version of evidence tendered by the sons and wife of the deceased and is in accord with the medical evidence. It is in their evidence

that Bashir Bhat was having 'Draht' in his hand. Gani Bhat was having a 'lathi' and it was Gani Bhat who 'struck' Mohd Shaban Dar with 'lathi' first

and then Bashir Bhat hit him with 'Drath' on his face injuring his nose.

While examining the evidence we are alive to the fact that prosecution witnesses, Hajra, Maqsood Ahmad Dar, Mohd Iqbal Dar, and Ghulam

Mohd Dar, wife and sons of the deceased, are interested witnesses. This evidence is scrutinized with caution. We have carefully analysed and

evaluated their evidence. While adopting cautious judicial approach in appreciating this evidence, we do not find it of the type and nature to

warrant rejection interalia only because it has come from interested and relation witnesses. Their version of the events appears truthful and genuine.

It is fairly corroborated by the evidence of the other independent witnesses and medical evidence opinion in material particulars. In the facts and

circumstances of the case, the evidence on record appears true, genuine and reasonable.

In State of Gujarat Vs. Naginbhai Dhulabhai Patel and Others, , in the context of appreciation of evidence of relation or interested witnesses, it

is observed:-

..... The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is

proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court..

In the facts and circumstances, as above, the culpability of the accused Gani Bhat and Bashir Bhat is overwhelming established and proved

beyond all shadows of doubt by on record evidence. Against the other three accused Naba Bhat, Yousuf Bhat and Hafeeza, there is absolutely no

evidence to support, much less to prove, their complicity or/and participation or actually taking part in the occurrence, resulting in death of Mohd

Shaban Dar and injuries to deceased's wife and sons. They have been wholly exculpated and no evidence is there to sustain the charges against

these three accused.

Gani Bhat and Bashir Bhat, the two accused, actually attacked, assaulted and caused injuries to Mohd Shaban Dar, who subsequently

succumbed to the injuries in the hospital. They also caused injuries to other witnesses by 'Lathi' and 'drath' as proved by ocular, medical and other

evidence. While Gani Bhat dealt Lathi blow to Mohd. Shaban Dar, Bashir Bhat, hit him with 'Drath' at nose and eyelid, proceeded by exchange of

hot words between the deceased and Gani Bhat accused and rising of tempers while engaged in settlement of accounts under the auspices of 'ahale

baradari'. Gani Bhat left the meeting in a fit of rage. The moment he emerged from meeting, he urged his brother Bashir Bhat to get weapon, who

obliged him by bringing 'Drath' and 'Axe'. He kept Drath to himself and gave Axe to their brother Naba Bhat. While Gani Bhat struck the

deceased with dandha and pulled him down the stair, Bashir Bhat struck him with 'Drath' resulting in fracture of his nose. By ocular account of

witnesses, the autopsy report, injury reports and the deposition of the Doctors/medical witnesses, it is proved that nose bone of Mohd Shaban Dar

was fractured in the manner alleged by the prosecution. The medical evidence also establishes that Mohd Shaban Dar died not because of nosal

injury but due to cardiac problem/profuse bleeding. In the autopsy report and in the depositions of Doctor Gh. Mohd. Gani who conducted the

autopsy, it is opined that this nosal injury 'was not sufficient in the ordinary course of nature to cause death' and did not cause death in this case. It

is also seen from on record evidence that the occurrence took place on spur of moment with tempers high. Though Bashir Bhat had no intention to

commit crime, when he came and waited for his other two brothers engaged in settlement of accounts up-stairs, but once his brother Gani Bhat

emerged from the room he on his solicitations brought 'drath' and 'axe and actually used 'drath' to inflict injuries on deceased, while Gani Bhat used

'lathi also for the same purpose. There is fair amount of credible evidence to show that common intention between the two accused developed on

the spur of moment when both attacked Gani Bhat and other members of his family on the spot. Gani Bhat spotting Hajra forced his entry in the

kitchen and assaulted her, she was injured. Iqbal Dar and Gh. Mohd Dar were also thrashed. The common intention in giving beating and injuring

them as above, runs through the entire warf and web of the prosecution evidence, as in the facts and circumstances, same is gathered and gleaned

on appreciation of on record evidence.

In Dukhmochan Pandey and Ors. v. State of Bihar AIR 1998 SC 40 it is observed:-

The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code

and such intention could be formed previously or on the spot during the progress of the crime. Usually, it implies a pre-arranged plan which in turn

pre-supposed a prior meeting of mind. But in a given case such common intention may develop at the spur of the moment in course of the

commission of offence. But much common intention which develop at the spur of the moment in different from a similar intention actuating a number

of persons at the same time and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the

Indian Penal Code can be applied to all those who might have made some overt attack on the spur of the moment"".

In Ramashish Yadav and Others Vs. State of Bihar, the Supreme Court again observed :-

..........Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of

common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is

the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either

from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and is presupposes prior concert. Therefore,

there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offender unfolding itself

during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment

but there must be a pre-arrangement of premeditated concert...

In the above view of the matter, conviction of the two accused, Gani Bhat and Bashir Bhat u/s 326 RPC read with Section 34 RPC so far as

causing of voluntarily grievous hurt in furtherance of the common intention of both the accused, is concerned, same cannot be found fault with and

on re-appreciation of the whole evidence, we confirm the finding on that count. Though Section 149 RPC and not Section 34 RPC is mentioned in

the charge alongwith other offences but in the facts and circumstances of this case, omission to mention Section 34 RPC and taking recourse to

such section for vicariously convicting and sentencing one of the two accused is not impermissible under law.

In Dhanna v. State of M.P. (1996 S.C. : 2478) the Supreme Court held:-

It open to the court to take recourse to Section 34 of I.P.C., even if the said section was not specifically mentioned in the charge and instead

Section 149 I.P.C. has been included of course a finding that assailant concerned had a common intention with the other accused is necessary for

restoring to such a course.

In this context we find that the trial court has erred in acquitting the two accused in so far as the two accused having in furtherance of the

common intention committed house trespass by forcibly entering the kitchen and belabouring an d voluntarily causing hurt to Mst. Hajra and also

causing hurt/simple injury to witnesses Mohd Iqbal Dar and Mohi-ud-din Dar. As observed, there is ample, cogent and over-whelming evidence to

prove beyond reasonable doubt culpability of accused Gani Bhat and Bashir Bhat in causing voluntarily hurt and committing house trespass. The

credible and satisfactory evidence furnishes safe-basis to convict each of the two accused in further of the common intention of both under

Sections 323 RPC and 448 RPC. We accordingly convict the two accused u/s 323/448 RPC read with Section 34 RPC.

The Sessions Judge taking notice that the case has been pending for about 14 years took a very lenient view of the matter and sentenced each

accused to undergo nine months simple imprisonment and fine of Rs. 500/-each. The fine was directed to be paid to the widow and if not surviving

then to legal representatives of the deceased.

However, keeping in view the genesis and origin of the occurrence, nature of the crime committed and the gravity of the offence, we find that

the sentence awarded is ridiculously low, and needs to be enhanced. The accused convicts were given opportunity to show cause why sentence be

not enhanced. We accordingly heard the parties on this aspect of the case.

It is to be noted that the occurrence has its genesis in the parties not agreeing to accounts and money liability of deceased towards accused. It

cannot also escape notice that notwithstanding, that the parties could not settle the accounts, the acts of accused Gani Bhat in pulling down the

deceased from the make-shift ladder and giving him a blow on his head and then calling the other accused to bring the instrument to which call

accused Bashir Bhat brought ""Drath"" and hit deceased on face, only to cause nosal bone fracture exhibits some what uncanny behaviour on the

part of accused given the close relation of parties. It is on evidence that many others on spot tried to intervene and retrieve the situation, but could

not succeed, because of the intransigent attitude of the two accused notwithstanding each of these two accused gave just one blow to deceased.

The two accused injured deceased's sons and even spotting his wife in the kitchen did not spare her she too was belaboured and injured after Gani

Bhat forced entry in kitchen. Both accused shared common intention to assault and cause injuries to the family, besides to commit house trespass.

It is so even when from record it is seen that deceased was maternal uncle (Mama) of the accused and the accused did not even spare him, the

loved and all important relation in kinship. Only because accused were facing trial for about 14 years, they cannot be so leniently left out without

discounting with the other circumstances, warranting reasonably higher punishment. Merely because the accused have remained in lock up as under

trial prisoners just for nine months, same cannot be the sole consideration to award only this much of period as punishment and that too of simple

imprisonment. The two accused had been taken in custody on 1.5.84 and 15.5.84 and were bailed out just on 7.3.85. The punishment has to be

adequate and proportionate to the gravity of crime and one which could serve the ends of justice. Making fair margin for extenuation circumstances

appearing from record, and having regard to the genesis, Origin and nature of the crime committed, gravity of the offences, mode and manner in

which the offences are committed, adverse consequences on social fabrics, and conduct of the accused in the entire facts and circumstances of the

case, we consider that justice would be met, if each of the two accused is awarded a sentence of rigorous imprisonment of five years and a fine of

Rs. 10,000/- each for offence u/s 326/34 RPC. In default of payment of fine each accused to further undergo one year's rigorous imprisonment. In

the event of the fine being paid, deposited, the fine so realized be paid as compensation to the widow or if not surviving, then to legal heirs of the

deceased.

We also on conviction of the two accused under Sections 448/323/34 RPC on consideration, in the facts and circumstances of the case and as

an expediency of justice, sentence each accused to undergo six months imprisonment under each of the two penal Sections 448/323 read with

Section 34, of RPC. All the sentence to run concurrently. The period of detention undergone by the accused during investigation, enquiry and trial

of the case during pre conviction period shall be given set off against the afore imposed term of imprisonment. Award of sentence on conviction

shall be restricted to the remainder term of imprisonment within the meaning of Section 397A of Cr. P.C. (1933 AD). Orders accordingly.

In result, the criminal appeal with the above modification in conviction and sentence of the two accused Gani Bhat and Bashir Bhat, is

accepted. So far as other accused are concerned the appeal is dism issed. Both Gani Bhat and Bashir Bhat accused to surrender to serve out the

remainder portion of ordered sentence. The surety and recognizance bonds of other three accused are discharged. The judgment and order be

certified to trial court under Chapter XXXI of Cr. P.C.