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2005 Supreme(J&K) 373
IN THE HIGH COURT OF JAMMU AND KASHMIR AT Jammu
R.C. Gandhi,J.P. Singh, JJ.
Amar Nath & Ors. - Appellant
Versus
State Of J&K - Respondent
Cr. Appeal No. 2/2000
Decided On : 21 December, 2005
Advocate For Appellant: O.P. Thakur
Advocate For Respondent: S.C. Gupta
Headnote:Criminal Procedure Code: Section 157-Ante-timed FIR-Accused admitting in their statement under Section. 342 Cr. PC that occurrence had taken place and also the time of occurrence leaves no manner of doubt that the FIR lodged by complainant party was not ante-timed or antedated. (Para 19)
Criminal Procedure Code-Section 157-Delay in Receipt of Report by Magistrate-Delay in receipt of special report contemplated by Section 157 of the Code of Criminal Procedure, may be taken note of only if the accused does his part of the duty in a criminal trial to elicit reasons from the investigating police officer. Unless such a course is adopted by an accused during trial of a case, the plea of delay in receipt of Special Report by the concerned Magistrate, may not be approximately taken by the Appellate Court. (Para 23)
Expression "shall forthwith send a report of the same to a Magistrate" does not contemplate receipt of report by the Magistrate. The act, which is contemplated to be mandatorily complied with by the officer recording the FIR, is the dispatch of report by him to the Magistrate concerned-In absence of any material on record, there is presumption of regularity of all official actions. (Para 25)
Ranbir Penal Code-Section 302-Murder-All accused have common object of taking possession of land of complainant party-Accused arrived with deadly weapons-Accused entered into and upon the land of deceased with an interim to deprive him of possession-All the accused acted in unison in furtherance of their object of obtaining possession of land with that object cause grievous injuries-Accused used sticks and iron rods so as to cause grievous injuries. Accused caused grievous injuries and dragged deceased to house to kill them. unlawful assembly of the accused used force and violence in prosecution of their common object-Act of accused amount to offence punishable under section 302 RPC-Conviction altered from 304 Part II to 302 RPC.
Ranbir Penal Code-Section 300 Exception 4-Culpable Homicide Not Amounting to Murder-Accused came at the place of occurrence after having made preparation to take possession of land and were armed with lethal weapons-The accused had common object of taking possession of the land and in doing so, doing away with the life of any such person who would obstruct their resolve of taking possession-8uch an act cannot be said to be an act without premeditation, in a sudden fight, in the heat of passion, and upon sudden quarrel-Accused acted in cruel and unusual manner-Case does not fall in anyone or the other ingredients of Section 300 Exception 4, on the basis whereof the case of the accused could be termed as culpable homicide not amounting to murder. (Para 55, 56, 57)
1. Judgment dated 03.02.2000 and Order dated 04.02.2000 of learned Additional Sessions Judge, Ramban, (hereinafter referred as Trial Court), has been questioned in Criminal Appeal No. 02/2000 by the accused and in Criminal Acquittal Appeal No. 26/2000, by State of J&K.
2. Whereas, the accused seek their acquittal under Sections 304 Part- II, 307, 342 and 149 R.P.C., the State seeks their conviction under Section 302 R.P.C., besides other offences they committed, which resulted in death of Krishan Lal and severe injuries to Isher Singh.
3. We have heard Sh. O. P. Thakur, learned counsel appearing in support of the appeal and Sh. S. C. Gupta, learned Additional Advocate General, appearing for the State.
We will first examine the prosecution case.
PROSECUTION CASE: -
4. A written report was lodged by one Vishwa Nath S/o Shiv Saran, Caste Thakkar R/o Chakwa, Batote, on 20.05.1993. It was alleged in the report that one Amar Nath S/o Roda, Caste Gaddi, and his sons nursed an old enmity with the complainant and his sons in respect of a dispute over a piece of land. Dispute is pending in different Courts. One of such case is pending adjudication before Deputy Commissioner, Doda. Amar Nath and others want to forcibly occupy the land in possession of Krishan Lal. It was at about 5.30 p.m., that Amar Nath S/o Roda, Sansar Chand, Hukum Chand, Pritam Singh and sons of Amar Nath and Shankru, son-in-law of Amarnath and Mst. Satya, wife of Sansar Chand, R/o Chakwa, Batote, forcibly entered the land of Krishan Lal and started ploughing it. On this, Krishan Lal told them not to do that, when the afore-mentioned persons, started quarreling. Sansar Chand, armed with an iron rod and other with clubs attacked the complainants son who received grievous injuries. On raising of hue and cry, the complainants another son Isher Singh came on spot and tried to retrieve Krishan Lal from the clutches of the accused, when all the afore-mentioned persons attacked him also with iron rod and clubs, whereafter all the accused dragged the two sons of the complainant to their house. The complainant after some time went to their house where Sansar Chand and his brothers declared that today, they have done them to death. In the meanwhile, complainants other sons Subash Chand, Son-in-law Shamsher Singh reached there. All of them raised alarm which was heard by Safroo S/o Rupa, who also came running on spot. In the meanwhile, from inside room of Amarnath, Isher Singh, son of the complainant, cried on the top of his voice that father they have beaten Krishan Lal with clubs and lathies, and thereafter they have strangulated him to death and that he too had been beaten.
5. This report was registered as FIR No. 52/1993, under Sections 302, 307, 148, 342/34 of the Ranbir Penal Code, in Police Station, Batote. SHO along with his Constables reached the house of Amarnath, where they found Isher Singh in an injured condition tied with a wooden pillar inside the room of the accused, Krishan Lal was found dead as he had succumbed to the injuries received by him. Isher Singh was shifted to Hospital with the help of labourers, who had been putting up at a distance from the place of occurrence, whereas dead body of Krishan Lal was shifted from the house of the accused on the second day.
6. Magistrate, seized of the Police challan, committed the case for trial to the Trial Court, who framed charge against the accused under Sections 302, 447, 148, 149, 342 R.P.C.
The accused pleaded NOT GUILTY to the charge and claimed to be tried.
The prosecution examined seventeen out of twenty witnesses. These are Isher Singh, Subash Chander, Shanker Singh, Safru, Khazan Singh, Jagdish Chand, Munshi Ram, Sukhdev Singh, Mohd Hussain, Saif Din, Rafiq Ahmed, Pritam Singh, Mir Chand Patwari, Brij Lal Bhagat Medical Officer, Dr.Dinesh Khajuria Radiologist, Dr.Narinder Singh Radiologist, Tanveer Ahmed Sub-Inspector, the then SHO Police Station Batote, the Investigating Police Officer.
The accus
