Per syed Bashir-ud-din Judge (oral)

1. Accused (appellant and respondents of the two appeals) were tried under Section 302, 148, 447 and 149 RPC in the court of 3rd AdditionalDistrict and session Judge, Srinagar on charges on murder, criminal trespass ans roiting resulting in death of Abdul Rashid Bhat son of the complainant at Bugam. Accused Bashir Ahmed Mir was convicted after being found guilty of having caused death of Abdul Rashid Bhat with the Knowledge that his act of hiting deceased™s head with ˜yatferi™ was likely to cause death and sentenced under section 3042) RPC to six years rigrious imprisonment and fine of Rs. 2000/- (in default to further undergo 40 days simple imprisonment). All other accuseds were acquitted. This order of conviction/acquittal dated 23.7.98 and order of sentence dated 24.7.98 are under challange in these appeals. The convicted accused Bashir Ahmed Mir has challanged his conviction and sentence, as above and the State Government has appealed against acquittal of the other accused.

2. This challange is to the common judgement of acquittal and conviction and order of sentence. The matter is heard and this appellate court judgement shall govern both the appeals as common question of fact and law arise in these appeals.

3. Succeinetly put the prosecution case is that on 9.8.96 the complainant Ahad Bhat PW1 and his sons noticed on site that ˜darrah™ (A small bund on the stream to divert water for irrigation) situated at Nasarpora had been fiddled with and dismantled by some family members of accused Mohd. Mir. provoked complainant™s son deceased Abdul Rashid abused the accused and wanted to know the reasons for interference on their part with the ˜darrah™. This he did in the hearing of one Mst Zaina, wife of accused Bashir Ahmed Mir who rushed forward and caught hold of the complainant™s neck. However, the complainant expressed regretes and pacified her. The other accused, menfolk of the house-hold did not take it lyingly. They forced their entry into the complainant house, while armed with ˜yatferi™ ˜Levon™ and ˜dandas™. Accused Bashir Mir dealt fatal blow with ˜yatferi™ he was holding in his hands on the head of the Abdul Rashid while accused Nazir Ahmed struck him with ˜Levan™ and yet other accused beat him with ˜dandas™. He fell down unconcious. He was carried to police post Khag, where from after complainant filed report he was carried for treatment to Hospital at Khag. The Police Chowki Khag while diarising report requested Police Station Beerwah for registration of FIR. The injured a for non-availibility of the Doctor at Khag health centre was referred to SKIMS, Soura. The injured though treated and operated in the SKIMS Soura ultimately sccumbed to the injuries in the night intervening 11/12th August 1996. Police seized the dead body. Medical certificate was obtained from SKIMS, Soura. The dead body was brought to Beerwah hospital for autopsy. However, the post-mortem could not be conducted as Doctor nominated for the purpose refused to do so in view of the certificate issued by SKIMS. The spot inspection was conducted and site plan prepared. Statements under section 161 Cr. P.C were recorded followed by taking other investigative steps. The investigation culminated in sending up accused for trial. The accused were charged under sections 302, 148, 447 and 149 RPC. Accused pleaded not guilty to the charge and opted to be tried. The 3rd Additional District and Session Judge recorded statements of prosecution witnesses and admitted other evidence. The statements of accused under secton 342 Cr.P.C were also recorded. Accused defence was one of ˜non-guilty™ upon hearing the arguments case ended with judgement and order of conviction and sentence/acquittal as referred earlier.

4. Mr. Gh. Mustaffa, GA submits that the evidence has not been correctly evaluated and appreciated. The guilt of the accused is proved by the occular evidence. As many as 14 witnesses have deposed against accused. Conviction of

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