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2010 DIGILAW 61 (JK)

Mohd. Shafi Dar v. State

2010-02-10

GH.HASNAIN MASSODI, J.P.SINGH

body2010
J.P. Singh, J. 1. Noor Mohd. Dar, was injured at his shop, and on the road abutting, situated at Humhama, Budgam, Kashmir, in the afternoon of April 23, 2004, with a knife. His father lodged a Report with Station House Officer, Police Station, Budgam to the effect that he had gone to offer Assar prayers in a Mosque, that Mohd. Shaft Dar and Mushtaq Ahmed Dar, the appellants, armed with knife and Churi, attacked his son Noor Mohd. at the shop and again at the road abutting where, injured he reached, with the help of M/S Zahoor Ahmed, Mohd. Ahsraf, Bilal Ahmed and Riyaz Ahmed Bhat, with the intention to commit his Murder. FIR no.138/2004 was registered at Police Station, Budgam under Sections 307, 452 and 120-8 RPC in this respect. Noor Mohd. Dar succumbed to the injuries at District Hospital, Budgam. His Post Mortem examination indicates following injuries on his person: - Multiple Stabs:- a) Nape of Neck 1" x 1" deep. b) 7"-8" deep at epigastrium, 1-1/2" Entry length. c) L-shaped wound near chin on (L) side of throat. d) 8" deep stab in (R) Chest through Liver. e) Some bruises and abrasions over face. According to Dr. Taha Khan, who conducted the Post Mortem, Noor Mohd. Dars death was a result of massive blood loss (internal as well as external) and injury to the vitals i.e. Heart and Liver, leading to rapid collapse of cardiovascular system terminating to cardio-vascular arrest. 2. After completion of the investigation, a Final Police Report was laid with the Chief Judicial Magistrate, Budgam, who committed it to the Sessions where all the appellants were charged under Sections 302, 452, 120-B RPC. 3. After appreciating the evidence produced during the trial of the case, the trial Court of learned Sessions Judge, Budgam, while finding the prosecution to have failed to prove the charge of Criminal conspiracy against the appellants, found it to have proved Mohd. Shafi Dar and Mushtaq Ahmed Dar, guilty of committing House Trespass and Murder of Noor Mohd. Dar, And M/S Zahoor Ahmed, Mohd. Ahsraf, Bilal Ahmed and Riyaz Ahmed Bhat, guilty of Culpable Homicide Not Amounting To Murder. 4. Mohd. Shafi Dar and Mushtaq Ahmed Dar were accordingly sentenced to imprisonment for life and fine of Rs. Shafi Dar and Mushtaq Ahmed Dar, guilty of committing House Trespass and Murder of Noor Mohd. Dar, And M/S Zahoor Ahmed, Mohd. Ahsraf, Bilal Ahmed and Riyaz Ahmed Bhat, guilty of Culpable Homicide Not Amounting To Murder. 4. Mohd. Shafi Dar and Mushtaq Ahmed Dar were accordingly sentenced to imprisonment for life and fine of Rs. 10,000/- each with default sentence of six months under Section 302 RPC and to two years imprisonment and fine of Rs.5000/- each with default sentence of three months under Section 452 RPC. M/S Zahoor Ahmed, Mohd. Ahsraf, Bilal Ahmed and Riyaz Ahmed Bhat were sentenced to seven years rigorous imprisonment, besides fine of Rs.10,000/- each, under Section 304-II RPC. 5. Benefit of the Probation of Offenders Act, was provided to Bilal Ahmed Bhat in view of the malignancy he was found suffering from. 6. Mohd. Shafi Dar and his brother Mushtaq Ahmad Dar have filed Criminal Appeal No. 14/2009 whereas M/S Mohd. Asharaf Dar, Zahoor Ahmad Dar, Bilal Ahmad Bhat and Riyaz Ahmad Bhat have filed Criminal Appeal No. 13/2009, questioning the conviction and sentence awarded to them vide Session Judge. Budgams Judgment of June 23, 2009 and Order of July 18, 2009 respectively. 7. Confirmation Reference made by learned Sessions Judge for confirmation of the sentence of imprisonment of life awarded to Mohd. Shafi Dar and Mushtaq Ahmed Dar has been registered as Reference No. 14/2009. 8. The State of Jammu and Kashmir too has filed acquittal Appeal no.05/2009 questioning the appellants acquittal under Section 120-B RPC, 9. The facts necessary for determination of the aforementioned Appeals may be summarized thus:- 10. The Complainant Abdul Salam Dar had two shops at Humhama Chowk Budgam near the Jammu and Kashmir Bank Limited where Noor Mohd. Dar and Shabir Ahmad Dar, his two sons, were running business in Auto Spare Parts and Cooking Gas. Gulzar Ahmad Bhat was the private employee helping his sons in their business. Mohd. Shafi Dar appellant too was running a shop in the same complex. Appellants Mohd. Shafi Dar, Mushtaq Ahmad Dar. Mohd. Ashraf Dar and Zahoor Ahmad Dar are the cousins and brothers-in-law of Noor Mohd. who had married their sister Rafiqa. Appellants Bilal Ahmad Bhat and Riyaz Ahmad Bhat are the cousins of Mohd. Shafi Dar and others. 11. Ms. Mohd. Shafi Dar appellant too was running a shop in the same complex. Appellants Mohd. Shafi Dar, Mushtaq Ahmad Dar. Mohd. Ashraf Dar and Zahoor Ahmad Dar are the cousins and brothers-in-law of Noor Mohd. who had married their sister Rafiqa. Appellants Bilal Ahmad Bhat and Riyaz Ahmad Bhat are the cousins of Mohd. Shafi Dar and others. 11. Ms. Rafiqa, married to Noor Mohd., about two years before the occurrence and having one years old son out of the wedlock, was not pulling on well with Noor Mohd. and had thus returned to the parental house dissatisfied with her husband. 12. It was at about 5 p.m. of April 23, 2004 that PW-Shabir Ahmad Dar and his employee PW-Gulzar Ahmad Bhat, on hearing cry from Noor Mohd.s shop "Oh God Save Me", ran towards it, to find that appellants Mohd. Shafi Dar and Mushtaq Ahmed Dar, were attacking Noor Mohd. in the shop. Mohd. Shafi Dar had injured Noor Mohd. in the abdomen with a knife, and on Noor Mohd.s coming out a few steps of his shop, he was again attacked by the duo on the road inflicting injuries on throat and abdomen with the knife, with the help of M/S Mohd. Ashraf, Zahoor Ahmad, Bilal Ahmad and Riyaz Ahmad Bhat. 13. Noor Mohd. Dar was taken to the hospital where he succumbed to the injuries. 14. There are only two eye witnesses to the occurrence namely PW-2 Gulzar Ahmad Bhat and PW-3 Shabir Ahmad Dar. Both these witnesses have given the eye witness account of the occurrence testifying to Mohd. Shafi Dars injuring the deceased in his shop/office and outside thereto on the road. Mushtaq Ahmad Dar, his brother too is stated to have participated in the assault on the deceased on both these occasions. According to the witnesses, M/S Mohd. Ashraf, Zahoor Ahmad, Bilal Ahmad and Riyaz Ahmad Bhat had, by stopping the deceased on the roadside, facilitated Mohd. Shafi Dar and Mushtaq Ahmed Dar in causing injuries to him. These witnesses are, however, silent as to when had M/S Mohd. Ashraf, Zahoor Ahmad. Bilal Ahmad and Riyaz Ahmad Bhat reached on spot and how had they facilitated Mohd. Shafi Dar and Mushtaq Ahmed Dar in attacking the deceased on the road. They had not noticed the above named appellants, when, on hearing cry from the office of the deceased, they went there. Ashraf, Zahoor Ahmad. Bilal Ahmad and Riyaz Ahmad Bhat reached on spot and how had they facilitated Mohd. Shafi Dar and Mushtaq Ahmed Dar in attacking the deceased on the road. They had not noticed the above named appellants, when, on hearing cry from the office of the deceased, they went there. They are also silent regarding the role played by each one of the above mentioned appellants m facilitating Mohd. Shafi Dar and Mushtaq Ahmed Dar causing injuries to the deceased. 15. Finding that the prosecution had failed to lead evidence to prove that the appellants had hatched conspiracy to kill the deceased and that M/S Mohd. Ashraf, Zahoor Ahmad, Bilal Ahmad and Riyaz Ahmad Bhat were there at the place of occurrence pursuant to the conspiracy, the learned Sessions Judge, held the Charge of Criminal conspiracy, not proved, against the appellants. He, however, convicted and sentenced appellants Mohd. Shafi Dar and Mushtaq Ahmed Dar under Sections 302/452 RPC and rest under Section 304-II RPC. 16. We do not feel the necessity of reproducing the evidence of the prosecution witnesses resume whereof has been given in detail by the trial Court in its judgment reference whereto shall be made, wherever necessary, in view of the legal submissions which the appellants learned counsel Mr. S.T. Hussain had made in the case, choosing not to dispute the findings on facts of the trial Court and the manner in which the occurrence had taken place, and rightly so, in view of the statements made by appellants Mohd. Shafi Dar and Mushtaq Ahmed Dar under Section 342 Cr.P.C admitting them to be there with the deceased at the time of the occurrence, And the learned State counsel urged supporting the State Acquittal Appeal and the judgment impugned in the Appeals. 17. Concentrating on legal submissions alone, the appellants learned counsel, inter alia, urged:- (i) that the charge of Criminal conspiracy having failed for non-production of requisite evidence in the case by the prosecution, the appellants conviction and resultant sentence was unwarranted in the absence of any separate charge against the appellants for the offences for which they have been punished; (ii) appellants conviction under Sections 302 and 304-II RPC was illegal in the absence of any evidence to the effect that the injuries sustained by the deceased in the occurrence and attributed to the appellants were likely to cause death of Noor Mohd. Dar, or were otherwise sufficient in the ordinary course of nature to cause death; (iii) the appellants Mohd. Ashraf. Zahoor Ahmad, Bilal Ahmad and Riyaz Ahmad Bhats conviction under Section 304-11 RPC was illegal and erroneous in the absence of any evidence of their active participation or overt act in the occurrence; (iv) punishment awarded to the appellants was excessive, 18. Per contra, learned Additional Advocate General, Mr. Chesti, while justifying the appellants conviction and sentence sought setting aside of the appellants acquittal under Section 120-B RPC, saying that, even in the absence of any specific evidence on records proving the details of the conspiracy, the facts and circumstances of the case would suggest conspiracy by the appellants to commit the Murder of Noor Mohd. Dar and that they were, thus, required to be convicted and punished additionally for the offence punishable under Section 120-B RPC. 19. Rebutting the legal submissions of the appellants learned counsel, the learned State counsel submitted that even if the Charge of conspiracy was held not proved, the appellants still cannot escape punishment for the offence they had committed, in that, the Charge framed against the appellants did not suffer from any error of law vitiating the trial. No prejudice having been caused to the appellants, who had known the Charge they had to face, the conviction and sentence of the appellants would not warrant, interference in Appeal. 20. We will first deal with the State counsels submission as to whether the acquittal of the appellants by the trial Court was unjustified in the facts and circumstances of the case. 21. At the hearing of the appeals, learned counsel for the parties were not at variance that there was no evidence indicating any prior meeting of the appellants before the occurrence. The prosecution evidence is significantly silent as to how had the occurrence originated because none had seen the appellants near the place of occurrence before the two eye witnesses, after hearing cry from the shop of the deceased, reached there. 22. In these circumstances, meeting of the appellants to agree to do or cause to be done, any illegal act, still less to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or more cannot be said to have been proved by the prosecution to fasten the liability of Criminal Conspiracy on the appellants. 23. 23. The genesis of the prelude to the actual occurrence too has not been brought on records by the prosecution, which had come to the Court to support the Charge of conspiracy only suggesting that there was enmity between the appellants and the deceased over the matrimonial dispute of the deceased with the appellants sister. 24. This, in our view, would not, by itself, be sufficient to hold the appellants guilty of Criminal Conspiracy under section 120-B RPC, for the evidence or circumstances indicating meeting of minds of the alleged conspirators, is a sine-quo-non for commission of offence punishable under Section 120-B RPC, which is missing in the present case. 25. That apart what we find from the records is that there is no Charge as such of Conspiracy and all that has been said by the prosecution in this behalf to prove Criminal Conspiracy is that the acts of the appellants had been done pursuant to a Criminal Conspiracy, details whereof, are neither borne out from the prosecution case nor from the evidence which the prosecution has produced in the case. 26. We, therefore, do not find merit in the learned State Counsels submission that on the basis of the statements of the two eve witnesses alone an inference of Conspiracy was required to be drawn against the appellants. 27. Rejecting thus the learned State Counsels submission, we would proceed to examine the star submission of the appellants learned counsel that in the absence of the failure of the charge of Criminal Conspiracy against the appellants their conviction for Murder was not sustainable. 28. Before dealing with the appellants counsels submission aforementioned, it would be profitable to refer to what was held by a Constitution Bench of Honble Supreme Court of India on the requirement of framing Charge(s) in a criminal trial and what was meant by irregularity and illegality in Charge(s) and effect thereof, on the trial, in Willie (William) Slaney v. State of M.P., reported as AIR 1956 SC 116, commenting inter alia on Nanak Chand v. State of Punjab, reported as AIR 1955 SC 274, referred to by the appellants learned counsel to support his submission. 29. 29. While dealing with the question, their lordships of Honble Supreme Court of India, held as follows:- "(44) Now, as we have said, sections 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that "whatever" the irregularity it is not to be regarded as fatal unless there is prejudice. It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one. (45) In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably like to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage. If it was not, and particularly where the accused is defended, by counsel `AIR 1930 PC 57(2) at p.58(G), it may in the given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that "no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused" `AIR 1927 PC 44 at pp.46-47 & 49(F). But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were. (54) Now it is true that there are observations there which, without close examination, would appear to support the learned counsel for the appellant. But those observations must be construed in the light of the facts found, the most crucial fact being that patent prejudice was disclosed. (54) Now it is true that there are observations there which, without close examination, would appear to support the learned counsel for the appellant. But those observations must be construed in the light of the facts found, the most crucial fact being that patent prejudice was disclosed. It was found that the appellant there was in fact misled in his defence and one of the factors taken into consideration, as indeed must always be the case, was that when he was told that he was to be tried under section 302 read with Section 149 of the Indian Penal Code that indicated to him that he was not being tried for a murder committed by him personally but that he was only being made vicariously liable for an act that another had done in prosecution of the common object of an unlawful assembly of which he was a member. But that was only one of the matters considered and it does not follow that every accused will be so misled. It all depends on the circumstances. The entire evidence and facts on which the learned Judges founded are not set out in the judgment but there is enough to indicate that had the appellants attention been drawn to his own part in the actual killing he would probably have cross-examined the doctor with more care and there was enough in the medical evidence to show that had that been done the appellant might well have been exonerated. As judges of fact they were entitled and indeed bound, to give the accused the benefit of every reasonable doubt and so were justified in reaching their conclusion on the facts of that case. Illustrations (c) and (e) to section 225 of the Criminal Procedure Code show that what the accused did or omitted to do in defence are relevant on the question of prejudice. If the Court finds that a vital witness was not cross-examined when he might have been, and that if he had been, the further facts elicited might well have been crucial, then material from which prejudice can be inferred is at once apparent: that is exactly Illustrations (c) and (e). That, however, was, and remains, a pure conclusion of fact resting on the evidence and circumstances of that particular case. That, however, was, and remains, a pure conclusion of fact resting on the evidence and circumstances of that particular case. The decision was special to the facts of that case and no decision on facts can ever be used as a guide for a conclusion on facts in another case. (55) Now having reached the conclusion that there was prejudice, the learned Judges were of the opinion that the irregularity, if it can be so called when prejudice is disclosed, was incurable and from that they concluded that an incurable irregularity is nothing but an illegality: a perfectly possible and logical conclusion when the words "irregularity" and "illegality" are not defined. As we have already said, section 535 of the Criminal Procedure Code says that no finding or sentence "shall be deemed to be invalid" unless etc. and it can well be argued from this that this indicates that an omission to follow the provisions of the Code does in truth and in fact render the decision invalid but because of section 535 that which is in truth and in fact invalid must be deemed to be valid unless prejudice is disclosed. As there was prejudice in that case, the decision was invalid and being invalid it was illegal. We do not say that that is necessarily so but it is a reasonably plausible conclusion and was what the learned judges had in mind. (56) It is to be observed that section 535 of the Code is mandatory in its terms, just as mandatory as section 233. If it be accepted that an absence of a charge would, but for its provisions, render a conviction invalid, this section cures such an invalidity when there is in fact, not in theory but in `fact, no failure of justice. The section is just as mandatory as section 233 and we can see no justification for giving it less weight than section 237. The section is just as mandatory as section 233 and we can see no justification for giving it less weight than section 237. If section 237 validates a departure from section 233 and saves it from the stigma of an irregularity, then so does section 535, for it says very expressly that no conviction shall be deemed `invalid merely on the ground that no charge was framed unless that `in fact occasioned a failure of justice; and if section 535 is held not to apply to cases covered by sections 237 and 238, then it must apply to cases that lie outside the scope of those sections and the only kind of case left is a case in which there is a total absence of a charge, for any other type of case would be excluded because of mis-joinder. If section 233 is mandatory, that part of it which prohibits mis-joinder except in the cases mentioned in sections 234, 235, 236 and 239 is just as mandatory as the portion that requires a separate charge for each offence. It is unfortunate that we have no definition of the terms "illegality", "irregularity" and "invalidity" because they can be used in differing senses, but however that may be, the decision we are now examining and the remarks made in that case must be read in the light of this background We agree that, some of the expressions used in the judgment appear to travel wider than this but in order to dispel misconception we would now hold that the true view is the one we have propounded at length in the present judgment." 30. Reference needs to be made to a later three judge Bench decision of Honble Supreme Court of India in Dinesh Seth v. State of NCT of Delhi too, where referring to an earlier three judge Bench decision in Dalbir Singh v. State of U.P. reported as (2004) 5 SCC 334, the ratio of the law laid down on the issue by Honble Supreme Court of India was indicated as follows:- "In certain situations an accused can be convicted for an offence with which he may not have been specifically charged and that an error, omission or irregularity in the framing of charge is, by itself not sufficient for upsetting the conviction. The appellate, confirming or Revisional Court can interfere in such matters only if it was shown that error, omission or irregularity in the framing of charge had caused prejudice to the accused and failure of justice has occasioned." 31. The question raised by the appellants counsel, therefore, needs to be answered on the above settled legal position and before doing so, we would like to refer to the Charges which were given to the appellants in the case. 32. The Charge given to Mohd. Shafi Dar and Mushtaq Ahmad Dar, being on similar lines, the Charge given to one of the appellants Mohd. Shafi Dar is reproduced hereunder for reference:- "Mohd. Shafi Dar S/O Abdul Gaffar R/O Humhama. That pursuant to a criminal conspiracy, you, accompanied by Mushtaq Ahmad Dar, accused no.2 on 23.04.2004, armed with knife and Churi, entered deceased Noor Mohd.s shop situated at Humhama, with criminal intention, and attacked him repeatedly as a result whereof, he was injured and on his coming out of the shop in injured condition on the road, you along with Mushtaq Ahmad Dar, with the help of accused nos. 3 to 6 made murderous attack on him, as a result whereof, he fell down. This was done by you with intention to commit the murder of Noor Mohd., who later succumbed to the injuries, thereby committing offences punishable under Sections 302/452/120-B RPC." 33. The Charge given to M/S Mohd. Ashraf, Zahoor Ahmad, Bilal Ahmad and Riyaz Ahmad Bhat, too being similar, the charge given to one of the above named appellants, is reproduced hereunder for reference:- "Mohd. Ashraf Dar S/O Abdul Gafar R/O Gogo, Humhama. That on 23.04.2004, pursuant to a criminal conspiracy, you stopped Noor Mohd. injured, on the road, and with your help, accused nos. 1 and 2 attacked him with knife and churi, as a result whereof, he succumbed to the injuries, thereby committing offences punishable under Sections 302/452/120-B RPC." 34. Perusal of the Charge given to M/S Mohd. That on 23.04.2004, pursuant to a criminal conspiracy, you stopped Noor Mohd. injured, on the road, and with your help, accused nos. 1 and 2 attacked him with knife and churi, as a result whereof, he succumbed to the injuries, thereby committing offences punishable under Sections 302/452/120-B RPC." 34. Perusal of the Charge given to M/S Mohd. Shafi Dar and Mushtaq Ahmed Dar, when read as a whole, indicates it to be explicit in informing them of their trial, on the Charge of entering Noor Mohd.s shop with criminal intention to commit his Murder and in furtherance thereof about their actual acts of attacking the deceased in the shop as also on the roadside, however, with the addition that all this had been done by them pursuant to a Criminal Conspiracy. 35. Failure of the Charge of Criminal Conspiracy cannot thus be said to have affected, in any manner whatsoever, the other specific Charge of injuring the deceased with the knife with intention to commit his Murder. 36. That apart, the statements made by the appellants under Section 342 of the Code of Criminal Procedure, inter alia, to the effect that the deceased had hit Mushtaq Ahmed Dar with the gas cylinder and on his raising commotion Mohd. Shafi Dar had reached there to save him and there was scuffle between them and the deceased, goes a long way in establishing that there was absolutely no confusion with the appellants regarding the Charge for which they had been tried. The questions put to them under Section 342 of the Code of Criminal Procedure and their answers thereto leave no manner of doubt in our mind that the appellants Mohd. Shafi Dar and Mushtaq Ahmed Dar were in any way prejudiced because of the rolled up Charge of Criminal Conspiracy and Murder given to them during the trial of the case. 37. Relying on the ratio of the Constitution Bench judgment of Honble Supreme Court of India as explained in Willie Slaneys and Dinesh Seths cases (supra), we do not find any merit in the appellants counsels submission that failure of the Charge of Conspiracy in the case had affected in any way the conviction of appellants Mohd. 37. Relying on the ratio of the Constitution Bench judgment of Honble Supreme Court of India as explained in Willie Slaneys and Dinesh Seths cases (supra), we do not find any merit in the appellants counsels submission that failure of the Charge of Conspiracy in the case had affected in any way the conviction of appellants Mohd. Shafi Dar and Mushtaq Ahmed Dar, who in view of the findings recorded by the learned trial Court, were found to have entered the deceaseds shop with common intention of causing injuries to him with the knife carried by Mohd. Shafi Dar. Perusal of the Rolled up charge given to M/S Mohd Ashraf, Zahoor Ahmed, Bilal Ahmed and Riyaz Ahmed Bhat discerns explicitly its two parts viz. (i) that they had stopped Noor Mohd. injured on the road pursuant to a Criminal Conspiracy and (ii) with their help, Mohd. Shaft Dar and Mushtaq Ahmed Dar had attacked Noor Mohd. with knife and churi, as a result whereof, he succumbed to the injuries. 38. Failure of the first Charge of the Conspiracy, for the similar reasons, as have been given while dealing with the Charge of Mohd. Shaft Dar and Mushtaq Ahmed Dar, would not affect the subsequent charge on these appellants of helping Mohd. Shaft Dar and Mushtaq Ahmed Dar, in causing injuries to the deceased. 39. The statements made by these appellants under Section 342 of the Code of Criminal Procedure, where they had stated that there was no evidence about their beating the deceased on the roadside on the day of the occurrence too shows their complete awareness to the Charge given to them of helping the appellants in causing injuries to the deceased, which they had to face in the trial. 40. The plea raised by the appellants counsel that the appellants are entitled to be acquitted as a consequence of the failure of the Charge of conspiracy may not, therefore, be sustainable. 41. We will now come to the merits of the appellants case to find out their culpability. It would be necessary, in this context, to refer to what was held by the trial Court while recording conviction against them. The findings of the trial Court are reproduced hereunder for reference:- "...........So far as the acts of accused Mohd. Shaft and Mushtaq Ahmad are concerned they squarely fall under the caption culpable homicide amounting to murder. It would be necessary, in this context, to refer to what was held by the trial Court while recording conviction against them. The findings of the trial Court are reproduced hereunder for reference:- "...........So far as the acts of accused Mohd. Shaft and Mushtaq Ahmad are concerned they squarely fall under the caption culpable homicide amounting to murder. They have attacked the deceased with a sharp edged long knife at vital parts of body near liver and heart which has resulted in his immediate death. The intention to kill is apparent from their acts. Now the question is what is the decree of involvement of the other accused namely Zahoor Ahmad Dar, Mohd. Ashraf Dar, Bilal Ahmad Bhat, and Riyaz Ahmad Bhat. It has come in the evidence that these four accused were sitting outside the shop/office of the accused and has seen the injured deceased tried to run away from the place of occurrence. They intercepted him outside his shop, stopped him from running away and in the meanwhile the two accused Shafi and Mushtaq again attacked the deceased. There, all the accused have inflicted beating upon deceased and accused No.1 Shafi Dar has inflicted injury in the throat of the deceased with knife. Thus, these accused have directly participated in the commission of crime. The accused have been charged under Section 120-B besides 302 and 452 RPC. In proof of criminal conspiracy direct evidence is very really possible. In this case also there is no direct evidence. The evidence upon which the prosecution relies is of two types. One type is that the accused would earlier threaten the deceased of dire consequence because of the conflict which had erupted in between them on the relationship of the deceased with his wife. Another type of evidence is that as given by Ab. Salam Dar, father of the deceased who has lodged FIR also. He has stated that when he was proceeding towards the Mosque to offer his afternoon (Assar) prayers he found the other accused near the place of occurrence, three of them were on one place and 4th one was at some what distinct place near electric transformer. On the basis of these two types of evidence the prosecution wants this court to believe that there was a criminal conspiracy and pre-mediated plan of the accused to commit the crime. On the basis of these two types of evidence the prosecution wants this court to believe that there was a criminal conspiracy and pre-mediated plan of the accused to commit the crime. Here I would not like to agree with the prosecution case on following counts:- 1/ That Ab. Salam Dar, father of deceased who has lodged the FIR has not mentioned therein the presence of the other accused near the place of occurrence immediately before the occurrence as allegedly seen by him when he was proceeding to attend the afternoon (Assar) prayers. What prevented him from writing the said statement in the FIR is not sufficiently explained by the prosecution. 2/ The statement of all the eye witnesses has been recorded four days after the occurrence i.e. on 28th April. Thus they had enough of time to think over the matter. Thus I am of the opinion that the prosecution has failed to prove the existence of any criminal conspiracy leaving failed to do so all the accused are to be punished for the individual acts which they are said to have committed during the course of the crime. Now it is to be seen what exactly has been done by the other accused in the commission of crime. There is no direct evidence as to how they have beat the accused. They may have only used such force which was just to prevent the deceased from running away from the spot. Although the injuries which the deceased had sustained wer of such grievous in nature that it was very difficult for the deceased to run away from the place of occurrence. The case of these other four accused would be within section 304 part II Because at best it could only be said that the accused had knowledge that the main two accused were likely to cause such injury to the deceased which was likely to cause death. I am, therefore, of the opinion that these four accused cannot be convicted under section 302 of RPC. The evidence has come that the first two accused namely Mohd. I am, therefore, of the opinion that these four accused cannot be convicted under section 302 of RPC. The evidence has come that the first two accused namely Mohd. Shafi Dar and Mushtaq Ahmad Dar were found attacking the deceased inside his office although they dispute the prosecution case with regard to the purpose for which they entered the office of the deceased but nevertheless they can be held guilty of the commission of house tress pass after preparation to commit hurt under section 452 of RPC also. As already stated herein above they are likely to be convicted for the commission of offence punishable under section 302 of RPC. On the other-hand four accused are likely to be convicted under section 304 part II of RPC. The accused 1 and 2 namely Mohd Shafi Dar and Mushatq Ahmad Dar are accordingly convicted under section 302 read with section 452 of RPC and the accused 3 to 6 namely Zahoor Ahmad Dar, Mohd Ashraf Dar, Bilal Ahmad Bhat and Riyaz Ahmad Bhat are convicted under section 304 part II of RPC." 42. Perusal of the findings of the trial Court indicates that whereas appellants Mohd Shafi Dar and Mushtaq Ahmad Dar have been held guilty for their actual participation in attacking and hitting the deceased both at the shop as also on the roadside, the rest of the appellants have been held guilty for Culpable Homicide Not Amounting to Murder on the basis of their individual acts as no direct evidence on records as to how had they indulged in beating the deceased was available on records. Another reason found by the trial Court in finding these appellants guilty of Culpable Homicide Not Amounting to Murder was that the deceased had received grievous injuries and it would have been difficult for him to run away therefrom. 43. We have perused the statements of the two eye witnesses on which the appellants have been convicted and are of the view that the finding of the trial Court to the effect that M/S Mohd. Ashraf Dar, Zahoor Ahmad, Bilal Ahmad Bhat and Riyaz Ahmad Bhat had beaten the deceased on his coming out of the shop in injured condition, is supported only by one of the two eye witnesses and that too without disclosing as to who from these appellants had beat the deceased and in what manner. Ashraf Dar, Zahoor Ahmad, Bilal Ahmad Bhat and Riyaz Ahmad Bhat had beaten the deceased on his coming out of the shop in injured condition, is supported only by one of the two eye witnesses and that too without disclosing as to who from these appellants had beat the deceased and in what manner. The Report lodged by Ab. Salam Dar, the father of the deceased, on the basis whereof the FIR was registered too does not indicate about these appellants indulging in the act of beating the deceased and all that it says is that appellants Mohd. Shafi Dar and Mushatq Ahmad Dar had attacked the deceased with the help of these appellants. The Special Police Report, in terms of Section 157 of the Code of Criminal Procedure, as the record so indicates appears to have been received by the concerned Magistrate on April 27, 2004 i.e. after a period of three days with no explanation for the delayed receipt thereof. The eye witnesses are stated to have made their statements to the police under Section 161 of the Code of Criminal Procedure on April 28, 2004 i.e. four days after the occurrence. In the background of the above facts of late dispatch of Special Report and the recording of the statements of the eye witnesses four days after the occurrence, it is difficult to believe this part of the statements of the two eye witnesses that the appellants had stopped Noor Mohd. injured on the roadside when, in the meanwhile, other appellants attacked him causing injuries on the neck and in the chest. 44. The prosecution evidence is silent about the requisite details indicating these appellants participation in the occurrence. The time taken by the deceased in coming out on the road from the shop when he was being followed by other appellants, being too short, it would be unsafe to impute any criminal intention to these appellants of helping the other appellants in causing injuries to the deceased, when the evidence of the eye witnesses is of general nature and not specific regarding the role played by the appellants individually in that fraction of the moment of the deceaseds corning out of the shop and attacked on the road side by the other appellants. 45. 45. Even otherwise this part of the prosecution story that these appellants had helped the other appellants in causing injuries to the deceased by stopping him on the roadside appears to be improbable looking to the distance between the shop of the deceased and where the deceased was attacked second time outside his shop on the road where he had come followed by the appellants. 46. For all what has been said above, we do not find the prosecution to have proved any case against M/S Mohd. Ashraf, Zahoor Ahmad, Bilal Ahmad Bhat and Riyaz Ahmad Bhat for committing the offence of Culpable Homicide Not Amounting to Murder. The evidence lead by the prosecution against these appellants is so scanty that there is no scope for finding them guilty of any other minor offence too. 47. So far as the case of Mohd. Shafi Dar and Mushtaq Ahmad is concerned, we find sufficient evidence on records proving these appellants Criminal intention to enter the shop of the deceased to commit his Murder and in furtherance thereof to hit him with the help of each other with a sharp edged weapon, in the shop as also on the roadside causing serious 7 to 8 inches deep injuries at epigastrium and in the chest through liver which have been proved by the prosecution through the statement of Dr. Taha Khan to have been caused by the weapon seized in the case and which were sufficient in the ordinary course of nature to cause immediate death. 48. We do not find any merit in the appellants counsels last submission that the prosecution having failed to produce any evidence in the case that the injuries received by the deceased were sufficient in the ordinary course of nature to cause death, the appellants were liable to be punished for a lesser offence, in that, the submission is against the facts borne out from the records where Dr. Taha, in his supplementary statement, has categorically stated that the injuries were sufficient in the ordinary course of nature to cause death and had proved the certificate EXPM-II dated 29.03.2006 whereby he had responded to the police saying that the injuries found on the person of the deceased were capable and sufficient in the ordinary course of nature to cause death. 49. The upshot of the above discussion is that whereas States Acquittal Appeal no.5/2009 and appellants Mohd. 49. The upshot of the above discussion is that whereas States Acquittal Appeal no.5/2009 and appellants Mohd. Shafi Dar and Mushtaq Ahmad Dars Appeal no. 14/2009 fail and appellants Mohd. Ashraf, Zahoor Ahmad, Bilal Ahmad Bhat and Riyaz Ahmad Bhats Appeal succeeds. Accordingly, we dismiss Mohd. Shafi Dar and Mushtaq Ahmed Dars Criminal Appeal No.14/2009 and States Acquittal Appeal No. 5/2009. Allowing Confirmation Reference No. 14/2009, the sentence awarded to the appellants in Criminal Appeal No. 14/2009 is, accordingly, confirmed. 50. The Appeal filed by M/S Mohd. Ashraf, Zahoor Ahmad, Bilal Ahmad Bhat and Riyaz Ahmad Bhat shall, however, stand allowed setting aside their conviction and sentence as awarded by the trial Court. They are acquitted of the charge and are ordered to be set to liberty forthwith if not required in any other case.