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2003 DIGILAW 180 (JK)

State v. Gani Bhat

2003-06-06

SYED BASHIR-UD-DIN, V.K.JHANJI

body2003
1. 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 trespass, house breaking, rioting and causing simple injuries as members of unlawful assembly U/Ss 302,147, 148, 149,323,447 and 452 RPC. 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 a 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 31-03-1998. 2. 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. 3. On 29-04-1984 at village Shorat, Tehsil Kulgam parties (who happens to be relatives residing close by to each other) called Ahli Baradari (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 brothers 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. 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 is head while Bashir Bhat hit him on his face with ˜drath™ and caused injury on his nose and eye. The accused are stated to have also met deceased™s sons Gh. Mohi-ud-din Dar, Mohd Iqbal Dar and Maqsood Ahmad Dar besides, entered the deceased™s kitchen to beat and injure Mst. Hajra deceased™s wife. Injured MohdShaban Dar was taken first to Hospital at Kulgam after the first information report (Expw 1/1) 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 14-05-1984. 4. 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 seizure memos, recording of disclosure statement and drawing up of recovery memo, recording statements of witnesses U/s 161 Cr. PC. 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 these accused of all the offences with which they were charged. 5. 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 eyewitnesses, 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 guilt of accused is proved by evidence on record. Culpability of the accused in the occurrence is made out by depositions of number of eyewitnesses, 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 U/Ss 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 accused Gani Bhat and Bashir Bhat by the trial court is not adequate to serve cause of justice and law. 6. We have heard learned counsel for the parties on all aspects of the case. The counsel have taken us through record. 7. The stand 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 proof 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 althrough 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 Vs. Mrs. S. Dastane, (AIR 1975 SCL 1534); Sawal Dass Vs. State of Bihar, (AIR 1974 SC 778); Sharad Birdhi Chand Vs. Sarda, (AIR 1984 SC 1624) and State of U.P. Vs. Krishna Gupta, (AIR 1988 SC 2154 (2160)" 8. 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. 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 acts provided under Section 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 Maqsood Ahmad Dar, Mohd Yousuf Paddar 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 wait the outcome of the meeting, of her brothers with her maternal uncle in presence of ˜Ahli Baradari™, 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 tres-pass is not at all made out. She could not be held vicariously liable for the penal acts of the accused. 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 accused 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 muchless use the axe against accused or any one else. He did not participate in the occurrence. Even though Naba Bhat was given axe which was in his hand, yet he did no overt act and muchless 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. 9. 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 convened 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 brothers and to know the precise out come of the meeting held under the auspicies of the ˜Ahli Baradari™ and no further. It was in the midist 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 instrument. 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 as also Hafiza did not also participate. It was only Gani Bhat and Bashir Bhat who used the stick and ˜Drathi™ to give one blow each on the face and fore-head of the deceased besides belabouring 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. 10. 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. 10. These accused 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 for settlement of accounts between the parties in presence of Ahli Baradari. The parties have been closely related. Deceased was accused™s maternal uncle. While Gani Bhat and Naba Bhat physically took part 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 brother to get the instrument. It was at this stage that Bashir Bhat went and returned with drathi and axe followed by occurrence in which only Gani Bhat and Bashir Bhat took part. The entry or stay of the other accused in the deceased™s compound cannot be said to be with intent to commit any offence or intimidate or insult the deceased or his family or to commit any criminal tres-pass. 11. Viewed thus the charge of criminal tres-pass as also forming of unlawful assembly and commission of offence by the members of such assembly so as to inculpate the accused™s vicariously U/s 149 RPC is not brought home to the accused beyond hilt. The finding of the District & Session Judge on this count cannot be found fault with or said to be vitiated. 12. The next question is whether in the facts and circumstances, as above, all the accused cannot 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. 13. From evidence of the prosecution witnesses Ghulam Mohd Dar complainant; Iqbal Dar; Maqsood Dar and Mst. 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. 13. From evidence of the prosecution witnesses Ghulam Mohd Dar complainant; Iqbal Dar; Maqsood Dar and Mst. Hajra (sons and wife of deceased Mohd Shaban Dar); Muhammad Yousuf Paddar and Ghulam Nabi Dar, the eyewitnesses 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 (he 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 meeting besides deceased and the two accused, prosecution witnesses mohd Yousuf Paddar, 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 ˜Drath™. Bashir Bhat kept ˜Drathi™ to himself. He gave ˜Axe™ to Naba Bhat. On spotting deceased Muhammad 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 ˜Drath™ on his face, resulting in fracture of his nose and injury to his eye. Deceased fell down and bleed 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 Mohi-ud-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. The sons of the deceased, Ghulam Mohi-ud-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 handedover ˜Axe™ by co-accused Bashir Bhat, took any part in the incident. He, Yousuf Bhat and Hafiza did not in any manner took part in the occurrence. None of three did any overt or covert act, while Gani Bhat and Bashir Bhat assaulted and injured the deceased and his family members as above. 14. 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, EXP W 18/2 and EXP W18/3 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 underlying bone exposed, laceration on lower eye lid and contusion on left side of scalp on front region of Mohd Shaban Dar. He has opined that first two injuries could have been caused by a single blow of a sharp edged weapon. 15. Dr. Rouf Ahmad, House Surgeon of SMHS 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/ I and EXPW 19/2. Dr. Abdul 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 certificate EXPW 21 /1 and EXPW 21 /2 and stated on oath that nose bones of Mohd Shaban Dar were fractured into pieces. 15. Dr. Ghulam Mohd Ganai who conducted autospy on the person of the deceased Mohd Shaban Dar, has deposed no differently and testified to the post-mortem 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. 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 Mohi-ud-din 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. 16. Dr. Rouf Ahmad, House Surgeon under whose charge in ENT Ward of the 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. 17. 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 cheek 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, much as they have found Hajra and her sons, injured on spot. 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, much as they have found Hajra and her sons, injured on spot. Abdui Gani Wani, Mohd Abdullah Dar, Mohd Yousuf Paddar 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 ˜Drath™ 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. 18. 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 anaylsed 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 inter alia 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. 19. In State of Gujrat Vs. Naghinbhai (AIR 1983 SC 839), 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 straightway unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court..." 20. In the facts and circumstances, as above, the culpability of the accused Gani Bhat and Bashir Bhat is over-whelming established and proved beyond all shadows of doubt by on record evidence. In the facts and circumstances, as above, the culpability of the accused Gani Bhat and Bashir Bhat is over-whelming established and proved beyond all shadows of doubt by on record evidence. Against the other three accused Naba Bhat, Yousuf Bhat and Hafiza, there is absolutely no evidence to support, muchless 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. 21. 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, Basshir Bhat hit him with ˜Drath™ at nose and eye-lid, preceded 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 ˜Ahli 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 stairs, Bashir Bhat struck him with ˜Drath™ resulting in fracture of his nose. By ocular account of witnesses, the autospy 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 autospy report and in the depositions of Doctor Gh. Mohd Ganai who conducted the autospy, 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. Mohd Ganai who conducted the autospy, 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 not 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 solicitation 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 & Ors. Vs. 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 such common intention which developed at the spur of the moment is 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 Ors. Vs. State of Bihar ((2000-Cr. In Ramashish Yadav and Ors. Vs. State of Bihar ((2000-Cr. L.J. 12), 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 prearranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it 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 offenders 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 or pre-mediated concert..." 22. In the above view of the matter, conviction of the two accused, Gani Bhat and Bashir Bhat under section 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 Vs. State of M.P. (1996 SC 2478) the Supreme Court held:- "It is open to the court to take recourse to Section 34 of RPC, even if the said section was not specifically mentioned in the charge and instead section 149 RPC has been included of course a finding that assailant concerned had a common intention with the other accused is necessary for resorting to such a course." 23. 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 belaboring and voluntarily causing hurt to Mst. Hajra and also causing hurt/simple injuries 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 tres-pass. The credible and satisfactory evidence furnishes safe-basis to convict each of the two accused in furtherance of the common intention of both under sections 323 RPC and 448 RPC. We accordingly convict the two accused under sections 323/448 RPC read with Section 34 RPC. 24. 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. 5000/- each. The fine was directed to be paid to the widow and if not surviving then to legal representatives of the deceased. 25. 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 sentences be not enhanced. We accordingly heard the parties on this aspect of the case. 26. 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 on which all 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 the accused given the close relation of parties. It is in 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 and 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 tres-pass. 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 01-05-1984 and 15-05-1984 and were bailed out just on 07-03-1985. 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 extenuating 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 circumstance of the case, we consider the 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 under section 326/34 RPC. In default of payment of fine each accused to further undergo one year™s rigorous imprisonment. In the event of 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. In default of payment of fine each accused to further undergo one year™s rigorous imprisonment. In the event of 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 RPC 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 397-A 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 dismissed. 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.