1. The present three appeals, two filed by the accused against their conviction for various charges, one by the State against their acquittal for the charge of section 149 RFC along with Criminal Reference have been assigned to me by Hon'ble the Chief Justice in terms of Section 429 Cr.PC for my opinion as the third Judge as the Division Bench of this Court while hearing Criminal Appeals has given split view, inasmuch Brother Sunil Hali-J, has partly allowed both.the criminal appeals filed by the accused whereby modifying the conviction slapped upon accused Mohammad Ashraf Wani and Ali Mohd Dar from Section 302 RFC to Section 326 read with 149 RFC, consequently held accused, namely Mohd Ashraf Wani, Ali Mohd Wani, Reyaz Ahmed Wani, Ali Mohd Dar and Mohd Yousuf Wani guilty u/ss 326/307 RFC read with Section 149 RFC and sentenced them to undergo imprisonment for six (6) years. With regard to other accused, their conviction under sections 426/336/341/323 RFC as recorded by the learned trial Court is upheld. Consequently, Criminal Acquittal Appeal No. 01/2005 filed by the State is also partly allowed to that extent. 2. While disagreeing with the view of Brother Hali-J, with regard to accused Mohd Ashraf Wani and Ali Mohd Dar, Brother H. Imtiyaz Hussain-J (now retired), has upheld their conviction as already recorded by the learned trial Judge for the offences punishable under sections 302/426/336/341 and 323 RFC, as such dismissed Criminal Appeal No. 7/2004, whereas agreed with the finding recorded by Brother Hali-J with regard to the other accused persons, Criminal Acquittal Appeal No. 1/2005 has, thus, been allowed by Brother Hussain-J to the extent that conviction of the accused shall be read with the aid of Section 149 RFC as held by Brother Hali-J. In the aforesaid factual backdrop, Brother Hussain-J, who was heading the Bench, directed placing the matter before Hon'ble the Chief Justice for constitution of Full Bench of this Court in terms of Section 378 Cr.P.C. It is held by Full Bench that the criminal appeals filed by accused are required to be dealt in terms of Section 429 Cr.P.C and not in terms of Section 378 Cr.P.C. This is how the matter is placed before me. As agreed by learned counsel for both the sides that opinion to be delivered by this Court will also have its effect on Criminal Acquittal Appeal No. 1/2005 filed by theState and Criminal Reference No. 45/2004 sent by the learned Sessions Judge, Budgam in terms of section 374 CrPC for confirmation of the life imprisonment awarded to two accused. 3. There are as many as thirteen accused in this case who vide impugned Judgment dated 25-09-2004 of learned Sessions Judge, Budgam stand convicted and sentenced for various offences in the following manner: a. Mohammad Ashraf Wani and Ali Mohammad Dar for the offences under sections 302/426/336/341 and 323 RFC and sentenced to imprisonment for life and a fine of Rs. 5000/- each, in default thereto, to undergo simple imprisonment for six months under section 302 RFC; imprisonment for one year under section 323 RFC; imprisonment for one month under section 341 RFC; imprisonment for three months under section 336 RFC and imprisonment for three months under section 426 RFC. b. Mohammad Ashraf Sheikh for the offences u/ss 307/426/336/341 and 323 RFC and sentenced to undergo three years simple imprisonment and a fine of Rs. 3000/- under section 307 RFC; one year simple imprisonment for 323 RFC; three months simple imprisonment each under sections 426 and 336 RFC and one month simple imprisonment under section 341 RFC. c. Ali Mohammad Wani, Riaz Ahmad Wani for the offences under sections 354/323/426/336 and 341 RFC and sentenced for two years under section 354 RFC; one year under section 323 RFC; three months each under section 426 and 336 RFC and one month under section 341 RFC. d. Abdul Rashid Rather, Bashir Ahmad Rather, Mohammad Yousuf, Mohammad Abdullah Sheikh, Ama Ganai, Abdul Samad Rather, Ghulam Mohiuddin Malik and Mohammad Yousuf Malik for the offences under sections 426/336/341 and 323 RFC and sentenced for one year under section 323 RFC; three months each under sections 426 and 336 RFC and one month under section 341 RFC. All the sentences, however, have been ordered to run concurrently and the period already undergone in custody by the accused was ordered to be set off against the terms of the sentences awarded to them. All the sentences, however, have been ordered to run concurrently and the period already undergone in custody by the accused was ordered to be set off against the terms of the sentences awarded to them. It needs to be mentioned here that the accused Mohd Ashraf Wani was arrested on 13-02-2002, whereas accused Ali Mohd Dar was arrested on 06-03-2002 and at the time of passing of the impugned Judgment, they were under detention. Accused Ali Mohd Dar was granted bail by this Court vide order dated 29-12-2006 passed in Criminal Appeal No. 7/2004. However, bail application of Mohd Ashraf Wani was dismissed. He is thus in custody since February 2002 i.e for the last more than ten (10) years, whereas accused Ali Mohd Dar remained in custody for four years, six months and few odd days. So far as accused Mohd Ashraf Sheikh is concerned, the maximum sentence awarded to him is for three years. He was arrested on 03-02-2002. His substantive sentence was suspended vide order dated 25-10-2004. He, thus, remained in custody for two years, eight months and few odd days. So far as accused Ali Mohd Wani is concerned, he was arrested on 6-03-2002 and released on bail on 31-01-2004. The maximum sentence awarded to him is two years under section 354 RFC. His sentence was suspended by the learned trial Court itself vide order dated 7-10-2004 subject to riling of the appeal in this Court. So far as accused Riaz Wani is concerned, he was arrested on 13-02-2002, as such he has already undergone more than the term of sentence awarded to him in terms of the impugned judgment. With regard to the other eight accused as referred to hereinabove in column (d), the maximum sentence awarded to them was one year under section 323 RFC. Accused Mohd Yousuf Wani, Abdul Rashid Rather, Gh. Mohiuddin Malik and Mohd Yousuf Malik were in custody since the date of their arrest i.e 13-02-2002, as such they had undergone the detention of more than the term of sentence awarded to them. Accused Abdul Sheikh and Ama Ganai were arrested on 22-05-2003 and 7-06-2003 respectively, as such they too had undergone the detention of more than one year. Mohiuddin Malik and Mohd Yousuf Malik were in custody since the date of their arrest i.e 13-02-2002, as such they had undergone the detention of more than the term of sentence awarded to them. Accused Abdul Sheikh and Ama Ganai were arrested on 22-05-2003 and 7-06-2003 respectively, as such they too had undergone the detention of more than one year. However, accused Bashir Ahmad Rather was arrested on 13-02-2002 and released on 13-12-2002 by the trial Court and that accused Abdul Samad Rather was arrested on 06-03-2002 and released on bail on 04-02-2003, their detention period was some what less than one year, as such they were also granted the bail by the trial Court itself vide order dated 07-10-2004 subject to filing of the appeal in this Court. 4. What emerges from the aforesaid facts is that at present only accused Mohd Ashraf Wani is languishing in the jail, whereas all other accused have either undergone their substantive sentence during the trial or have been granted bail after conviction. 5. Criminal Appeal No. 07/2004 is filed by the following two accused. i. Mohd Ashraf Wani s/o Gani Wani ii. Ali Mohammad Dar s/o Ghulam Rasool Dar,both residents of village Zalowa, Tehsil Chadura, District Budgam. 6. Criminal Appeal No. 8/2004 was initially filed by as many as 13 accused including accused Mohd Ashraf Wani & Ali Mohammad Dar. Since these two accused had already filed Criminal Appeal No. 07/2004 vide order dated 25-10-2004, their names were ordered to be deleted from the array of appellants, Criminal Appeal No. 8/2004, thus, survives qua the following 11 accused. i. Ali Mohd Wani son of Mohammad Ramzan. ii. Reyaz Ahmad Wani son of Gh. Hassan, iii. Bashir Ahmad Rather s/o Gh. Mohammad, iv. Mohammad Yousuf Wani s/o Gh. Hassan, v. Mohd. Ashraf Sheikh s/o Mohd. Abdullah, vi. Abdul Rashid Father s/o Gh. Mohd. vii. Mohd. Abdullah Sheikh s/o Majid Sheikh, viii. Ama Ganai son in law of Rajab Ganai. ix. Abdul Samad Rather s/o Ahad Rather, x. Gh. Mohiuddin Malik s/o Ahad Malik, xi. Mohd. Yousuf Malik s/o Gh. Mohiuddin All residents of village Zalowa Tehsil Chadoora, District Budgam. 7. State being aggrieved of the acquittal of the accused in respect of charges under section 120-B,149 RFC & 34 RFC, has filed Cr. ix. Abdul Samad Rather s/o Ahad Rather, x. Gh. Mohiuddin Malik s/o Ahad Malik, xi. Mohd. Yousuf Malik s/o Gh. Mohiuddin All residents of village Zalowa Tehsil Chadoora, District Budgam. 7. State being aggrieved of the acquittal of the accused in respect of charges under section 120-B,149 RFC & 34 RFC, has filed Cr. Acquittal Appeal No. 1/2005, praying therein that all the accused be convicted for the substantive offences with the aid of aforesaid three charges. As stated above Criminal Reference No. 45/2004 is with regard to confirmation of life sentence imposed upon aforesaid two accused namely Mohd Ashraf Wani and Ali Mohd Dar. Mr. Hussain, at the very outset, submits that his entire stress would be for diluting the offence even from section 326 RFC to section 325 RFC on the basis of evidence on record, but it is well settled that the 3rd Judge, after examining the entire evidence on record, can come to his independent conclusion even differing from the two split views taken by the Division Bench. In support of his contentions, he has relied upon the following Judgments of Hon'ble Supreme Court: a). Babu v. State of UP, reported as AIR 1965 SC1467; b). Hethubha v. State of Gujarat, reported as AIR 1970 SC 1266 ; c). State of A.P v. P.T. Appaiah, reported as AIR 1981 SC 365 and d) Radha Mohan Singh alias Lal Saheb and others v. State of UP (with connected appeal), reported as (2006) 2 Supreme Court Cases 450. Mr. Vakil also agrees to the aforesaid settled legal position. In Babu's case (supra), the Constitution Bench of Apex Court held that section 429, Code of Criminal Procedure, 1898 (which is same as section 392, Code of Criminal Procedure 1973) contemplates that it is for the third Judge to decide on what point he shall hear arguments, if any and that postulates that he is completely free in resolving the difference as he thinks fit. In Hethubha's case (supra), it was held that the whole case is to be dealt with by the third Judge and not merely the difference between the two Judges comprising the court of appeal and the third Judge was free to resolve the differences as he thought fit. In Hethubha's case (supra), it was held that the whole case is to be dealt with by the third Judge and not merely the difference between the two Judges comprising the court of appeal and the third Judge was free to resolve the differences as he thought fit. In P.T. Appaiah's case (supra), there was a difference of opinion between the two learned Judges of the High Court on the nature of the offence committed by the accused. One learned Judge held that the accused did not intend to cause death and consequently the offence committed by him was culpable homicide not amounting to murder punishable under section 304 Part 1 IPC. The other learned Judge held that the offence committed by the accused fell under clause thirdly of section 300 IPC and the accused was liable to be convicted under section 302 IPC. The third learned Judge, after examination of the entire evidence on record, came to the conclusion that the same was doubtful and suspicious in character and accordingly acquitted the accused. In appeal filed by the State, it was contended before the Hon'ble Supreme Court that it was not open to the learned third Judge to have acquitted the accused when both the learned Judges who heard the appeal initially were of unanimous opinion that the accused was guilty of having committed the offence and they had merely differed on the nature of offence committed by the accused. It was held that having regard to the language used in section 429, Code of Criminal Procedure, 1898, the third Judge to whom the case was referred did not overstep the limits of his jurisdiction in acquitting the accused merely because there was concurrent finding of both the Judges composing the Division Bench that the accused was guilty of some offence or that the difference between the two Judges of the Division Bench was confined to the nature of the offence only. The aforesaid Judgments of Hon'ble Supreme Court have also been reiterated in Radha Mohan Singh alias Lal Saheb's case (supra) decided by three Judges' Bench of Hon'ble Supreme Court. The present case, thus, calls for re-appreciation of the entire case afresh on the basis of the material available on record so as to arrive at the just conclusion of the case. 8. The present case, thus, calls for re-appreciation of the entire case afresh on the basis of the material available on record so as to arrive at the just conclusion of the case. 8. The prosecution case:- PW Abdul Gani Sheikh son of Sona-ullah resident of village Zaloa Tehsil Chadoora is the complainant/FIR lodger of this case. He lodged the written complaint exhibit PW 1/1 with Incharge of Police Post, Channapora. It is in vernacular and when translated into English version, it reads: "To Officer in charge Police Post Channapora. Application against (1) Ali Wani s/o Ramzan (2) Ashraf Wani s/o Gani (3) Yousuf Wani (4) Shabir Ahmad Wani sons of Ghulam Hassan Wani (5) Ama Ganai son-in-law of Ahad Ganai (6) Bashir Ahmad Rather (7) Abdul Rashid Rather s/o of Ghulam Mohammad Rather (8) Mohammad Abdullah Rather parentage not known (9) Mohammad Ashraf Sheikh s/o Mohammad Abdullah Sheikh (10) Ghulam Mohi-ud-Din Malik s/o Ahad Malik (11) Mohd Yousuf Malik s/o Mohi ud din Malik Residents of Zaloova. Sir, It is submitted:- That yesterday in Zaloova Security Forces entered the houses of some villagers for search purposes. The Applicant, this morning after offering prayers while returning from the Mosque to his home in the way was caught hold of by the above accused persons accosted the applicant and alleged the applicant had instigated the Security Forces to raid the village. The Applicant denied the allegation. On his denial, the above named accused persons stopped the applicant from proceeding further and beat him with dandas and Kulhadies with the intention killing him and one blow was struck with Kulhadi on the head of the applicant who got injured. On hearing the commotion and noise the applicant's daughter Shakeela Bano; Gh Mohd Mali s/o Fateh and Bilal Ahmad Malik s/o Subhan also came on spot for purpose of making intervention but the above named accused persons also assaulted them and both Gh Mohd Malik and Bilal Ahmad Malik were injured. The clothes of my daughter were torn apart. She was caught by her hair and dragged on the ground. Thereafter all the above named accused persons entered the house of the complainant/Applicant and started stone pelting so that the window panes and windows of the applicant's house were also broken. The Accused persons are a gunda party so action may be initiated. She was caught by her hair and dragged on the ground. Thereafter all the above named accused persons entered the house of the complainant/Applicant and started stone pelting so that the window panes and windows of the applicant's house were also broken. The Accused persons are a gunda party so action may be initiated. Yours faithfully, Abdul Gani Sheikh It needs to be mentioned here that on the same day, another written report exhibit PW 7/2 was presented with the same police post by Farooq Ahmad s/o Ali Mohd. It is also in vernacular and when translated into English version, it reads: To The Officer Incharge Police Chowki, Channapora. Application of Farooq Ahmad s/o Ali Mohd r/o Zaloova Chadoora-for redressal of his grievances. Dear Sir, It is submitted that Applicant's uncle Ghulam Mohd Malik s/o Fateh Mali is in an incurred condition and his condition is bad. His is on death bed. In fact, he has received an injury on his head. Some Gundas have inflicted this injury, their names are: Ali Mohd Dar s/o Lassi Dar, Bashir Ahmad Rather s/o Mohd Rather, Ali Mohd Wani s/o Ramzan Wani, Mohd Yousuf Wani s/o Ghulam Hassan Wani, Abdul Samad Rather s/o Ahad Rather and they done this in pursuance of a conspiracy to beat him and this event has taken place at 7 in the morning on 12-2-2002 on Tuesday or between 7 and 7.30 AM. However, on the night intervening 11 and 12 Feb one Bashir Ahmad Rather and another Ali Mohd Dar had proclaimed that on the next day morning they will commit the offence and the dead body of people will be found in the village. This was done as a warning to the villagers to save the life of a local Imma Sahib and any villager who come to help Imam Sahib would be killed. So your goodself is requested that this report may be registered and proceedings according to law may be taken that would be kind of your goodself. This was done as a warning to the villagers to save the life of a local Imma Sahib and any villager who come to help Imam Sahib would be killed. So your goodself is requested that this report may be registered and proceedings according to law may be taken that would be kind of your goodself. Farooq Ahmad s/o Ali Mohd R/o village Zaloova Dated 12-2-2002 The report submitted by Abdul Gani Sheikh was entered into Daily Diary Report (Roznamcha) as report No. 10 of 12-02-2002 at 2 pm, copy whereof was submitted to the police station of Saddar for registration of the case which resulted into registration of FIR bearing No. 41/2002 initially for the offences punishable under sections 307/148/354/452/336/427/341/323 RFC. Ghulam Mohammad Malik (deceased), Abdul Gani Sheikh and Bilal Ahmad Malik were referred to SKIMS Soura for treatment. Injured Abdul Gani Sheikh and Bilal Ahmed Malik were discharged after providing medical treatment, whereas Ghulam Mohammad Malik was admitted in the hospital who subsequently died on 17-02-2002, as such the offence punishable under section 307 RPC was substituted by offence under section 302 RPC. Section 149 read with Section 120-B RPC were also added to it. During investigation, statements of the witnesses were recorded, spot of occurrence was inspected, certain articles including damaged window panes were also seized from the spot. The dispute is with regard to some Auqaf property and utilization of Auqaf Funds by accused Abdul Samad Rather in a biased manner as he utilized the amount not for the welfare of the general public but to the benefit of his kin for which he was removed from the President ship of local Auqaf and one Moulvi Reyaz Ud Din who was the Imam of the Mosque was appointed as Overall Supervisor of the local Auqaf besides performing Imamt in the village. This assignment of Moulvi Reyaz ud din had in fact annoyed a group of people who was against him and this matter was also taken up by Divisional Commissioner, Kashmir who had directed Superintendent of Police, Budgam and Tehsildar concerned to personally intervene into the matter, but the vested interest in the matter started conspiring against aforesaid Moulvi Reyaz ud din for which certain meetings were held from time to time and that one meeting was held on the evening of 11-02-2002 in the house of Ghulam Nabi Rather where all the accused except Abdul Samad Rather had participated. It is on that day that the Security Forces raided the house but they did not find anything objectionable there and left. A rumour was spread in the village that Moulvi Reyazuddin had arranged a raid at the hands of the Security Forces and on this ground, as stated above, an ultimatum was given by the accused that they would teach lesson to Moulvi Reyazuddin and his supporters. The prosecution case is that in furtherance of the aforesaid conspiracy, the accused had formed an unlawful assembly on 12-02-2002 and assaulted the complainant Abdul Gani Sheikh, Ghulam Mohammad Malik alias Moma Malik (deceased) and others. After completion of the investigation, final report (challan) was filed against all the accused and they were accordingly charged for the offences punishable under sections 302/307/354/341/427/149/326/323 read with Section 34 RFC. There appears to be some defect in framing of the charges, but that aspect would have no bearing upon the case. Therefore, I do not want to enter into discussion on this count. The prosecution in support of its case has examined 24 witnesses, namely Abdul Gani Sheikh, PW-1, Bilal Ahmad, PW-2, Shakeela Akhter, PW-3, Abdul Ahad Sheikh, PW-4, Ghulam Mohd Bhat, PW-5, Abdul Ahad Malik, P W-6, Farooq Ahmad Malik, PW-7, Ali Mohd Malik, PW-8, Ghulam Mohd Bilal, PW-9, Mst. Zoona, PW-10, Ghull Malik PW-11, Mustaq Ahmad Malik, PW-12, Farooq Ahmad Malik, PW-13, Mustaq Ahmad Bhat, PW-14, Mohd Sultan Mir, PW-15, Abdul Ahad Malik, PW-16, Gani Malik, PW-17, Mymoona Akhter, PW-18, Dr. Rafiq Ahmed, PW-19, Dr. Riaz Ahmed Lone, PW-20, Abdul Rashid Patwari (Settlement), PW-21, Riaz Ahmad (Constable), PW-22, Ghulam Ahmad (Head Constable), PW-23 and Ali Mohd (Inspector), PW-24. Out of the aforesaid prosecution witnesses, PW-11, PW-15, PW-16 & PW-18 have been given up by the prosecution. Rafiq Ahmed, PW-19, Dr. Riaz Ahmed Lone, PW-20, Abdul Rashid Patwari (Settlement), PW-21, Riaz Ahmad (Constable), PW-22, Ghulam Ahmad (Head Constable), PW-23 and Ali Mohd (Inspector), PW-24. Out of the aforesaid prosecution witnesses, PW-11, PW-15, PW-16 & PW-18 have been given up by the prosecution. The prosecution witnesses have stated as under:- Abdul Gani Sheikh, PW-1 deposed that on 12-02-2002 while he was returning from Mosque after morning prayers, he saw the accused Ashraf Sheikh was holding axe and accused Ashraf Wani and Yousuf Wani holding spades in their hands. Accused Ashraf Sheikh struck blow of axe on his head while Ali Wani inflicted a stick blow on his head. Moma Malik (since deceased) came on spot and intervened. Accused Ali Dar inflicted a blow with an iron rod on his head. Accused Ali Wani and Riaz Wani dragged Moma Malik up to the culvert and on reaching there, Ashraf Wani inflicted a spade blow on the head of Moma Malik. His daughter namely Shakeela Bano intervened but Ali Wani and Riaz caught hold of her by her hair and dragged her. The witness lodged a written report with the police and his son Farooq Ahmed Sheikh accompanied him. He was injured and remained admitted in the hospital. The deceased Moma Malik died on 17-02-2002. He further stated that the basic dispute was the removal of Samad Rather from the supervisor ship, which was disliked by the accused and in his place one Moulvi Reyazulhaq was appointed. The witness further deposed that it was prayer time as such all the witnesses examined by the prosecution were present at the spot. On returning home, he was told that accused had broken the window panes of his house and pelted stones. In his cross examination, the witness deposed that Ali Malik, Ahad Malik, Bilal Malik, Ghulam Mohammad Sheikh and some others removed him from the place of occurrence. He further deposed that morning prayer was attended by Samad Bhat, Bilal Malik, Ahad Malik and Gh. Mohammad Sheikh and others. Bilal Ahmed, PW-2 deposed that on 12-02-2002 he came out of his home to purchase bread after attending morning prayer. He saw accused Ashraf Sheikh inflicting an axe blow at the hand of Gani Sheikh, who sustained injuries and blood was oozing out from there, whereas accused Ali Wani inflicted stick blow at his head. Mohammad Sheikh and others. Bilal Ahmed, PW-2 deposed that on 12-02-2002 he came out of his home to purchase bread after attending morning prayer. He saw accused Ashraf Sheikh inflicting an axe blow at the hand of Gani Sheikh, who sustained injuries and blood was oozing out from there, whereas accused Ali Wani inflicted stick blow at his head. Moma Malik came for intervention, but accused Ali Dar inflicted a blow with a pipe rod on his head. Accused Ali Wani and Riaz Wani caught hold of Ghulam Mohd Malik and dragged him upto the culvert. Accused Ashraf Wani inflicted a spade blow on the head of the deceased, which caused bleeding. Shakeela daughter of Gani Sheikh also came on spot to save her father. The witness further deposed that while he tried to intervene, accused Abdul Rashid Rather inflicted a stick blow on the right side of the head. The basic reason of dispute was that Samad Rather was removed from the Supervisory ship of Auqaf Committee and in his place Moulvi Reyaz was appointed as Supervisor of the said Committee. Accused persons in the form of procession went to the house of Moulvi Reyaz to attack him. Bashir Rather warned that if Moulvi Reyaz does not leave the village, his supporters will be killed. Shakeela came on spot after this witness had sustained injuries at his head and she was also assaulted and dragged by the accused. She has denied the suggestion by the defence counsel that the complainant Gani Sheikh tried to assault accused Ali Wani. Shakeela Akhter, PW-3 corroborated the statements of complainants Abdul Gani Sheikh, PW-1 and Bilal Ahmed, PW-2. She clearly deposed that she was dragged and assaulted by accused Riaz Wani and Ali Wani. Involvement of other accused persons who inflicted blow on deceased has also been confirmed by her. Abdul Ahad Sheikh, PW-4 deposed that removal of Abdul Samad from the Supervisory ship of Auqaf Committee and in his place appointment of Moulvi Reyaz as Administrator of the Auqaf was the dispute between the parties. He deposed that meeting was called by Abdul Samad Rather on the evening of 11-02-2002, which was attended by Ali Mohd Wani, Ali Mohd Dar, Ghulam Ahmed Gani, Bashir Ahmed Rather, Abdul Rashid Rather, Mohd Yousuf Wani, Riaz Ahmed Wani, Ashraf Sheikh, Abdul Sheikh, Ashraf Wani, Ghulam Mohi-ud-din Malik and Yousuf Malik. He deposed that meeting was called by Abdul Samad Rather on the evening of 11-02-2002, which was attended by Ali Mohd Wani, Ali Mohd Dar, Ghulam Ahmed Gani, Bashir Ahmed Rather, Abdul Rashid Rather, Mohd Yousuf Wani, Riaz Ahmed Wani, Ashraf Sheikh, Abdul Sheikh, Ashraf Wani, Ghulam Mohi-ud-din Malik and Yousuf Malik. While the meeting was going on, the security forces raided the house of Abdul Samad Rather. After the security forces left the place, an ultimatum was given by the accused Ali Mohd Dar and Bashir Rather that if Moulvi Reyaz would not leave the village by 7 am next morning then he and his supporters will be killed. This witness also supports the version of PW-1 and PW-2 relating to the occurrence. He also identifies the role of the accused person who inflicted blow on the head of the deceased as well as complainant. This witness contradicted the plea of the defence that Gani Sheikh the complainant tried to hit Ali Dar and hit deceased Moma Malik who died. He categorically stated that Ghulam Mohd Malik was hit by Ali Dar with iron pipe and Ashraf Wani with spade. Ghulam Mohd Bhat, PW-5 and Abdul Ahad Malik, PW-6 reiterated the versions given by the aforesaid witnesses. They have affirmed the role of the accused persons in the said occurrence. Farooq Ahmed Malik, PW-7 affirmed the genesis of the dispute as deposed by other prosecution witnesses. He also confirmed the meeting being arranged at the house of Abdul Samad Rather on the evening of 11-02-2002 where conspiracy was hatched to attack the complainant party. He admits having submitted FIR in the Police Station. He identified his signature on EXPW-7 and EXPW-7/1 and he also identified his own written report EXPW-7/2 which corroborates the same. He denied having attacked the accused parties in the morning of 12-02-2007. Ali Malik, PW-8, Ghulam Mohd Bilal, PW-9 AND Mst. Zoona, PW-10 have given identical versions regarding the occurrence as they have corroborated the prosecution versions with regard to the role played by various accused persons on the day of occurrence. These witnesses are the eye witnesses to the occurrence. Mustaq Ahmed Malik, PW-12, Farooq Ahmad Malik, PW-13 & Mustaq Ahmed Bhat, PW-14 are the witnesses to EXPW-12/1 and EXPW 13/2 as also EXPW-14/1. Gani Malik, PW-17 deposed that he knew the accused and the deceased. These witnesses are the eye witnesses to the occurrence. Mustaq Ahmed Malik, PW-12, Farooq Ahmad Malik, PW-13 & Mustaq Ahmed Bhat, PW-14 are the witnesses to EXPW-12/1 and EXPW 13/2 as also EXPW-14/1. Gani Malik, PW-17 deposed that he knew the accused and the deceased. A meeting was held on 11-02-2002 at the house of Samad Rather. Army came to the village and cordoned the house of Samad Rather. Once the army left, accused came out and gathered in the house of Samad Rather holding lathies in their hands. It was expressed in the meeting that army was brought by Moulvi Reyaz, therefore, he should be killed. On reaching the house of Gula Bhat he found that Moulvi Reyaz was sitting. Accused Ali Dar and Bashir Ahmed Rather threatened that if Moulvi Reyaz does not leave the village till morning, he would be killed. Next morning on hearing noise, he came out and found Moma Malik and Gani Sheikh had fallen on the ground. Farooq Ahmed Wani and Gani Sheikh were trying to lift up Gani Sheikh. He asked Gani Sheikh about the occurrence. Moma Malik expired in the hospital. Dr. Rafiq Ahmed, PW-19 deposed that he conducted autopsy of the dead body of one Ghulam Mohd Malik on 17-02-2002. Both the eyes of deceased had haemorrhaged. Haemorrhage measuring 3" x1" deep and 4" in length was found inside skull on the left side of central lobe of cereberal hemisphere of the brain. Haemorrhage was found on left side of the neck. The cause of death was left frontal cerebral haemorrhage due to trauma of head. He proves the contents of postmortem report EXPW-M-1. He also admits the correctness of the contents of injury memo EXPW-M/S. In cross- examination, he deposed that there were no marks of dragging on the dead body. He makes it clear that there were two injuries on the dead body. Dr. Riaz Ahmed Lone, PW-20 deposed that on 12-02-2002 patients, namely, Abdul Gani, Ghulam Mohd Malik and Bilal Ahmad were brought to him by a constable in an injured condition. The injuries memo were prepared on which endorsement was made him. They have been exhibited as EXPM/20-1 and EXPW/20-2 and EXPW/20-3 respectively. He admits the correctness of the contents of EXPM/20-4. Riaz Ahmed Lone, PW-20 deposed that on 12-02-2002 patients, namely, Abdul Gani, Ghulam Mohd Malik and Bilal Ahmad were brought to him by a constable in an injured condition. The injuries memo were prepared on which endorsement was made him. They have been exhibited as EXPM/20-1 and EXPW/20-2 and EXPW/20-3 respectively. He admits the correctness of the contents of EXPM/20-4. He admits that the injuries were not open wounds and could be caused by a violent fall also and on being pushed against a hard substance. There is no mention of any injury on the head of the deceased. Abdul Rashid Patwari (Settlement), PW-21 deposed that on 12-02-2002 he was posted as Patwari (Settlement) of Zalwah area. He prepared a Khaka relating to Khasra No. 270 of village Zalwah. The land is of the kind of grazing land. The site plan EXPW-P-1 is in his handwriting and correct according to the record and site. Riaz Ahmed, PW-22 Constable No. 233 deposed that he is a police photographer. On 17-02-2002, he was ordered to take photographs of a dead body. On cross examination deposed that photographs were not shown to him in the court. He does not know whose dead body it was. Ghulam Ahmed H/C, PW-23 deposed that on 12-02-2002 injured Moma Malik and Gani Sheikh came to the police Chowki. They narrated that they were beaten by the party of All Mohd. Injured were referred to the hospital. He admits that accused party also came to the Police Station. They were also injured and they too were referred to hospital. He went on spot and prepared site plan EXPW/23-1. Clothes of the daughter of Gani Sheikh and window panes and stones were seized. He investigated the case upto 12-02-2007. He admits that there is rivalry between the parties and he has given this information on the basis of having conducted investigation in other case in the same village. He deposed that accused party is headed by Ali Dar whereas complainant party is headed by Moulvi Reyaz. Ali Mohd, PW-24 Inspector of Police deposed that on 12-02-2002 FIR No. 41 of 2002 was registered in Police Station, Saddar under sections 307/148 RPC. On the death of Moma Malik, the offence under section 302 RFC was also added to FIR No. 41/2002. He took the dead body in his possession and framed seizure EXPW-12 to this effect. Ali Mohd, PW-24 Inspector of Police deposed that on 12-02-2002 FIR No. 41 of 2002 was registered in Police Station, Saddar under sections 307/148 RPC. On the death of Moma Malik, the offence under section 302 RFC was also added to FIR No. 41/2002. He took the dead body in his possession and framed seizure EXPW-12 to this effect. He referred the dead body for postmortem. Besides this he also completed the procedural requirements. The witness during cross examination deposed that only one report was received in writing by the police but he finds two reports in writing on record. One report was presented by Farooq Ahmed Malik and other by Gani Sheikh. FIR was registered on the report of Abdul Gani Sheikh. He recorded the statements of both. According to the statement of Farooq Ahmed only five people have been arrayed as accused, whereas Abdul Gani Sheikh's report includes the names of eleven accused. Identification parade of the accused was not conducted. The complainant party was also detained. But they were released only because the case was closed as not admitted. The statement of the accused were recorded. They have denied the involvement in the case. They have stated that on account of Moulvi Reyaz's presence in the village, there was enmity between the accused-party and the complainant party. The specific stand taken under section 342 CrPC is that Abdul Gani was holding a spade in his hand. He tried to hit blow on the head of Ali Wani which missed him and hit Moma Malik who died. In essence they have admitted the occurrence to implicate the complainant party for having committing assault on the accused. 9. Defence Evidence: Accused have also examined 7 witnesses in their defence, namely, Nazir Ahmed Dar, DW-1, Ramzan Rather, DW-2, Ghulam Mohiuddin Sofi, DW-3, Habibullah Dar, DW-4, Abdul Rashid, DW-5, Ghulam Qadir Wani, DW-6 and Mohd Afzal Rather, DW-7. They have stated as under: Nazir Ahmed Dar, DW-1 deposed that he knew the complainant and the accused. Moulvi Reyaz's presence had spoiled the atmosphere of the village. He possessed immoral character and had illicit relation with the daughter of Abdul Gula Bhat where he was staying. He further deposed that Moulvi Reyaz was army informer and had conducted many raids in the village through army. The witness has deposed that said Moulvi was supported by complainant party. Moulvi Reyaz's presence had spoiled the atmosphere of the village. He possessed immoral character and had illicit relation with the daughter of Abdul Gula Bhat where he was staying. He further deposed that Moulvi Reyaz was army informer and had conducted many raids in the village through army. The witness has deposed that said Moulvi was supported by complainant party. He gives version that accused Wali was beaten by Ahad Sheikh, Gani Sheikh, Nazir Shekh, Ali Bhat, Bilal Malik, Rafiq Malik and Gani Malik. He did not intervene. Meanwhile Gani Sheikh attempted to inflict a spade blow on the head of Ali Wani, but it missed and hit the deceased. Complainant party dragged him. This witness was arrested on 25-02-2002 and was released in the month of March 2002. He did not tell about the occurrence to any Police Office or Magistrate and he does not know whether the accused person has lodged any report about the occurrence. Ramzan Rather, DW-2, deposed that he knew the accused. The deceased Moma Malik was related to him. Moulvi Reyaz is the source of trouble who divided the village into two groups as he is a man of bad character. He had a dispute with earlier wife. He had also illicit relation with one daughter of Gul Bhat. This witness has also corroborated the story of DW-1. Ghulam Mohiuddin Sofi, DW-3. deposed that he knew the complainant party as well as the deceased Moma Malik. On 12-02-2002 he heard a woman crying and weeping and when he enquired about it from her she stated that Ali Wani was beaten by some people. He did not enquire the names of these persons. Habibullah Dar, DW-4 deposed that he knew Gani Sheikh, Farooq Malik and other people who belong to the party of the complainant party. Numberdar of Zalwah village got Moulvi Reyaz and stationed him in the house of Gulla Bhat. Gulla Bhat is having two sons and two daughters out of whom the elder one is a divorcee and Moulvi Reyaz is the reason of her divorce. Ali Wani along with Ali Dar and Samad Rather told the Numberdar to remove Moulvi Reyaz from the village. This became the reason of dispute in the village. Gulla Bhat is having two sons and two daughters out of whom the elder one is a divorcee and Moulvi Reyaz is the reason of her divorce. Ali Wani along with Ali Dar and Samad Rather told the Numberdar to remove Moulvi Reyaz from the village. This became the reason of dispute in the village. Ali Wani was being beaten, meanwhile Moma Malik came on spot and Gani Sheikh inflicted a blow at the head of Ali Wani, but it hit Moma Malik who died. Abdul Rashid, DW-5 has given the same version with regard to occurrence and role played by Moulvi Reyaz. He deposed that the deceased was the cousin of his father. The social relations in the village between the people were very cordial before Moulvi Reyaz came to the village. Samad Rather was head of Auqaf of the village. Moulvi Reyaz removed him from this post with the help of Ali Malik and others. On 11-02-2002, army conducted the raid at the house of Samad Rther. On 12-02-2002 complainant party came out of the mosque armed with lathies. This party consisted of Ahad Malik, Ali Malik, Gani Malik, Maqbool Mir, Ghulam Mohd Mir, Ahad Sheikh, Gani Shekh, Natar Sheikh and Farooq Bhat. The above named persons assaulted and beaten Mahad Malik. They broke the window panes of the house of Ali Dar and Rasool Rather. Moma Malik caught hold of Ali Wani. Gani Shekh brought a spade and inflicted a blow on Ali Wani. It missed which hit Moma Malik who died. Ghulam Qadir Wani, DW-6 has given same version with regard to Moulvi Reyaz as well as the occurrence as stated by other defence witnesses. He also stated that he had not gone to the police station to lodge the report. Mohd. Afzal Rather, DW-7 also corroborated the version given by other witnesses with regard to Moulvi Reyaz whose character has also been impeached by this witness. He deposed that on the message given by Moulvi Reyaz army raided the village. It is further relevant from his statement that 10712 people armed with lathies demolished the compound wall of Ali Dar. The accused also broken the window panes. House of Rasool Rather was also attacked. Window panes were broken. He deposed that on the message given by Moulvi Reyaz army raided the village. It is further relevant from his statement that 10712 people armed with lathies demolished the compound wall of Ali Dar. The accused also broken the window panes. House of Rasool Rather was also attacked. Window panes were broken. Gani Sheikh, Ahad Sheikh, Nazir, Bashir Ahmed Bhat, Ali Malik, Farooq Malik, Sitar Malik, Lasa Malik and Ashraf Malik caught hold of Ali Wani while Moma Malik deceased intervened to save him. Gani Sheikh inflicted a blow on his head which was missed and hit the head of Moma Malik, the deceased. He fell down and told Gani Shekh that he has killed him. This in all is the evidence produced by either side. 10. Heard Mr. Hussain, appearing for all the accused and Mr. Vakil, learned AAG representing the State. With the assistance rendered by them, I have gone through the entire evidence oral as well as documentary available on record. Mr. Hussain vehemently contends that it is a case in which the prosecution is suppressing the genesis of the occurrence, inasmuch as two different reports were lodged with the same police post on the date of occurrence i.e 12-02-2002; one by PW Abdul Gani Shekh which has resulted into registration of the present case and another written report lodged by PW Farooq Ahmed son of Ali Mohd Malik and in both the reports, not only the manner in which the occurrence has taken is shown differently, even certain accused are not shown to be present at the spot. He submits that PW Abdul Gani Sheikh, alleges that when he came out of the Mosque after offering prayers, accused Ali Wani, Ashraf Wani, Yousuf Wani, Bashir Ahmed Wani, Amma Ganai, Bashir Ahmed Rather, Abdul Rashid Rather, Mohammad Abdullah, Mohd Ashraf Sheih, Ghulam Mohamaddin Malik and Mohd Yousuf Malik caught hold of him and asked him as to why he had called the security forces for conducting the search of the village one day prior to the occurrence to which he refused having called security forces, still the aforesaid accused started assaulting him, whereas PW Farooq Ahmed Malik, alleges that his uncle had sustained injury on his head by Ali Mohd Dar son of Lassi Dar, Bashir Ahmed Malik, Ali Mohd Wani son of Ramzan Wani, Mohd Yousuf Wani and Abdul Samad Rather son of Ahad Rather in pursuance of their conspiracy to kill him. Learned counsel submits that learned trial Court has clubbed both the written complaints and convicted Mohd Ashraf Ward and Ali Mohd Dar for the main charge of section 302 RFC which is further upheld by one of Hon’ble Judge sitting in Division Bench, but disturbed by another Hon’ble Judge by diluting it to section 326 RPC read with the aid of Section 149 RPC. Mr. Hussain submits that, in fact, it was a group feud in which the complainant as well as the accused side had received injuries for which another FIR No. 42/2002 was also got registered at the instance of accused Ali Mohd Wani against certain persons of the complainant side who happen to be the prosecution witnesses against the accused in the present case, but the aforesaid FIR lodged was not investigated by the police in the right perspective in order to show favour to the complainant side. Mr. Mr. Hussain then submits that the evidence of PW Abdul Gani Sheikh and Farooq Ahmed Malik on which the entire prosecution case is primarily hinging is staring at each other, inasmuch as in the written report exhibit EXP 7/2 lodged at the instance of Farooq Ahmed Malik, name of Mohd Ashraf Wani who stands convicted for the offence under section 302 RPC is missing, but when he stepped into the witness box, after giving the flash back of the event that happened on 11-02-2002, a day prior to the occurrence, with regard to the main occurrence which happened on 12-02-2002, he improved the entire version of the prosecution by toeing the statement of PW Abdul Gani Sheikh. This, according to Mr. Hussain, is a material improvement which dents the prosecution story to a great extent. Mr. Hussam submits that primarily the evidence of the other prosecution witnesses is also of the same nature but he has put focus on the evidence of Abdul Gani Sheikh and Farooq Ahmed Malik for the reason that these two prosecution witnesses, in fact, had given two different versions before the police vis-a-vis the occurrence and for arriving at the just conclusion of the present case, the evidence of these two star witnesses call for deep appreciation as compared to the other prosecution witnesses. Adverting to the medical evidence, Mr. Hussain submits that the prosecution evidence runs absolutely contrary to the medical evidence on record. He submits that when the injury memo of deceased Moma Malik exhibit EXPM 20/2 was prepared, it reflected mainly one injury on the left side of the head, besides noticing blood oozing out of the ear. He submits that PW Doctor Riaz Ahmed Lon, who was posted in Emergency Ward at SKIMS when stepped into the witness box stated that on 12-02-2002, Ghulam Mohd Malik (since deceased) was brought to the hospital by a constable and that the endorsement at the back of the injury memo EXPW 20/2 regarding the said injured was prepared by him and bears his signatures. According to Mr. Hussain, at that time, the Doctor had not noticed any visible serious injury on the person of the deceased and it is only after the post mortem, the opinion given by the Doctor was that the death of Moma Malik was on account of left frontal cerebral haemorrhage. According to Mr. Hussain, at that time, the Doctor had not noticed any visible serious injury on the person of the deceased and it is only after the post mortem, the opinion given by the Doctor was that the death of Moma Malik was on account of left frontal cerebral haemorrhage. From this, Mr.Hussain, wants to develop that there is only one injury which was inflicted on the head of deceased Moma Malik and it is attributed to two accused persons namely Ali Mohd Dar who had initially inflicted a pipe blow on the left side of head of Moma Malik and Ashraf Wani who was having a spade in his hand, inflicted a spade blow with the iron part on the left side of his head near the culvert. Learned counsel submits in the present set of circumstances, when it is not known as to who out of two accused is the author of the fatal blow, it would not be legally safe to convict both of them under section 302 RFC and the present case, in that event, at the most, would fall within the mischief of section 325 RPC i.e causing grievous injury by a blunt weapon. He submits that on this count also, the conviction of accused Mohd Ashraf Wani and Ali Mohd Dar as recorded by the learned trial Judge for the offence punishable under section 302 RPC is bad. Mr. Hussain then submits that the present case, in any case, would not fall within the mischief of section 307 RPC substantively qua the accused Mohd Ashraf Sheikh as held by the learned trial Court. He submits that, no doubt, as per the prosecution evidence on record, Mohd Ashraf Sheikh had allegedly inflicted an axe blow on the head of PW Abdul Gani Sheikh, but as per the medical evidence on record, it cannot be said that the said injury was sufficient to cause death, had the timely aid been not provided to the injured (Abdul Gani Sheikh). He contends that in this regard perusal of the statement of Doctor Riaz Ahmed Lone is relevant. He contends that in this regard perusal of the statement of Doctor Riaz Ahmed Lone is relevant. Learned counsel further submits that, in fact, dragging of Moma Malik towards the side of culvert as projected by the prosecution on the face of it appears to be false and, in fact, the complainant and the accused side had an altercation on the date of occurrence after offering prayers in front of Mosque which resulted into an assault in which Abdul Gani Sheikh and Bilal Ahmed received certain injuries and that Moma Malik also intervened and received one injury on his head at the hands of some one and that the complainant side subsequently coined up a story of their choice by knitting a net wider. Mr. Hussain, however fairly contends that in case the defence set up by the accused is not believed by this Court, in that eventuality, the act attributed to all the thirteen accused, at the most, would fall within the mischief of section 325 RFC read with section 149 RFC and not for the offences punishable under section 302 RFC or 307 RFC. 11. Per contra, Mr.Vakil, learned AAG, submits that the case of the prosecution if seen in the sequence of the events how it all happened, it is a case in which all the accused deserve to be convicted for the main offence of section 302 RFC read with section 149 RFC being vicariously liable, therefore, the State has filed acquittal appeal. He however does not dispute the acquittal for the offence of section 34 or 120-B RFC. Mr. Vakil then submits that the present occurrence, in any case, cannot be said to be a case of free fight, rather it is one side attack on the complainant party and when Moma Malik tried to intervene, he too was isolated and dragged to a particular point (culvert) where he was assaulted by some of the accused persons including Mohd Ashraf Ward who gave an injury on vital part of his body (head) by the iron side of spade. Mr. Mr. Vakil then submits that the present case requires to be appreciated in the flash back of the altercation ensued one day prior to the occurrence which reflects the intention of the accused and for that reason only, they all formed an unlawful assembly on the day of occurrence in front of the Mosque knowing very well that Abdul Gani Sheikh and others would come out of the Mosque at a particular time for offering prayers. He submits that, no doubt, there are certain contradictions in the statements of prosecution witnesses including the injured witnesses, but that weakness would not demolish the case of the prosecution so far as specific attribution of part to accused Mohd Ashraf Wani and Ali Mohd Dar is concerned as these two persons have caused injury on the head of the deceased with their respective weapons. He thus submits that the conviction of these two accused persons as already held by the learned trial Court deserves to be upheld and that the remaining accused are also to be held liable for the said offence and other offences as well for which they are charged with the aid of section 149 RFC and may be sentenced accordingly. Mr. Vakil submits that even Mr. Hussain has also not laid much stress and confined his arguments vis-a-vis two accused only who are convicted for 302 RFC, but the present case is one in which all the accused deserve conviction with the aid of section 149 RFC. 12. What appears to the Court is that the entire stress of Mr. Hussain, is for diluting the charge of section 302 RFC qua accused, namely Mohd Ashraf Wani and Ali Mohd Dar, who have been substantively convicted for the said offence along with the offences punishable under sections 426/336/341/323 RFC. So far as charge of section 149 RFC is concerned, perhaps Mr. Hussain agrees that the acquittal of the accused for the said charge is bad, but on the strength of his legal acumen, he states that in the present set of circumstances, the main offence would fall down to section 325 RFC only and, therefore, the accused at the most can be convicted for the said offence with the aid of section 149 RFC. 13. 13. Even as per the judgment rendered by Brother Hali-J, charge of section 149 RFC is attracted in this case but qua five accused only, namely Mohd Ashraf Wani, Ali Mohd Wani, Riaz Ahmed Wani, Ali Mohd Dar and Mohd Yousuf Wani who are held guilty for the charge of sections 326/307 read with section 149 RFC. Not only that, even as per the judgment rendered by Brother Hussain-J, His Lordship, too, has agreed with the view taken by Brother Hali-J, except for diluting the offence from section 302 RFC to 326 RFC qua Mohd Ashraf Wani and Ali Mohd Dar, the appellants in Criminal Appeal No. 7/2004. Criminal Acquittal Appeal No. 1/2005 has also been allowed to the extent that the conviction shall be read with the aid of section 149 RFC, but to the extent of aforesaid five persons only. 14. However uninfluenced by the either view taken by Brother Judge sitting in Division Bench, I am re-appreciating the entire case on hand once again to form my own opinion. 15. Since a complete reference in verbatim has already been made to the report lodged by PW Abdul Gani Sheikh exhibited as PW1/1 and another report lodged by Farooq Ahmed exhibited as PW 7/2, I do not feel the necessity of referring to the details of the said reports once again, but what is pertinent to mention here that PW Abdul Gani Sheikh does not specifically attribute any particular injury to any of the aforesaid 11 accused persons. It is stated in the complaint that all the accused persons stopped him from proceeding further and assaulted him with 'Dandas' and 'Kulhadies'. However, in the said complaint he alleges that on hearing the noise, his daughter Shakeela Bano, Gh. Mohd Malik (since deceased) s/o Fateh and Bilal Ahmad s/o Subhan also came on spot for the purposes of making intervention but the above named accused also assaulted them in which Gh. Mohd Malik and Bilal Ahmad Malik were injured and that the clothes of his daughter were torn. So far as the dragging is concerned, Abdul Gani Sheikh alleges that his daughter was caught by her hair and dragged her on the ground and thereafter all the aforesaid accused persons entered his house and started pelting stones in which window panes were broken. So far as the dragging is concerned, Abdul Gani Sheikh alleges that his daughter was caught by her hair and dragged her on the ground and thereafter all the aforesaid accused persons entered his house and started pelting stones in which window panes were broken. PW Farooq Ahmed in his complaint states that Ali Mohd Dar s/o Lassi Dar, Bashir Ahmad Rather s/o Mohd Rather, Ali Mohd Wani s/o Ramzan Wani, Mohd Yousuf Wani s/o Gh. Hassan Wani and Abdul Samad Rather s/o Ahad Rather in pursuance of their conspiracy to beat Gh. Mohd Malik (since deceased), had assaulted him at 7 am in the morning of 12-2-2002. Farooq Ahmad, thus, added another two persons as accused namely Ali Mohd Dar s/o Lassi Dar and Ali Mohd Wani s/o Ramzan Wani. He (Farooq Ahmad), too, does not specifically attribute any injury to any of the aforesaid persons. Although the aforesaid two witnesses have not been confronted on certain vital aspects from these two reports, as admitted by Mr. Hussain during the course of arguments, nevertheless the evidence of prosecution witnesses requires to be appreciated keeping the aforesaid factual aspect into consideration for the reason that these two reports are duly proved on record. Not only that, even the two Investigating Officers also admit this fact when they stepped into the witness box, to which, I will be referring in my further discussion. However, at the cost of repetition, I feel the necessity of referring to the evidence of some of the main prosecution witnesses. Abdul Gani Sheikh when stepped into the witness box comes out with a specific part attributed to each of the accused and the weapon of offence each accused was holding in his hands. He states that accused Ashraf Wani and Yousuf Wani were holding spades in their hands; accused Ashraf Sheikh was holding an axe while other accused were holding sticks in their hands. Accused Ashraf struck an axe blow on his head, where as accused Ali Wani inflicted stick blow on his head which resulted into bleeding. He states that accused Ashraf Wani and Yousuf Wani were holding spades in their hands; accused Ashraf Sheikh was holding an axe while other accused were holding sticks in their hands. Accused Ashraf struck an axe blow on his head, where as accused Ali Wani inflicted stick blow on his head which resulted into bleeding. He then states that the in the mean while, Moma Malik (since deceased) came on the spot and intervened and when accused Ali Dar inflicted a blow with an iron rod on his head, he fell down on the ground and thereafter accused Ali Wani and Reyaz Wani dragged him by holding his legs up to the culvert and the other accused started beating him. He further states that on reaching to the culvert, accused Ashraf Wani inflicted a spade blood on the head of Moma Malik and thereafter his daughter Shakeela Bano reached the spot who, too, was injured by accused Ali Wani and Riaz as they had caught hold her by her hair and dragged her. Abdul Gani Sheikh does not talk of the presence of another injured witness Bilal Ahmad. PW Bilal Ahmad when stepped into the witness box stated that some of the accused were armed with lathies and some were armed with spades. He is specific about Ashraf Wani having spade in his hands and Ashraf Shekh holding an axe and an iron rod. He states that he had come out of his house to purchase bread and when he reached near Mosque, he saw that the accused were exchanging hot words with Abdul Gani Sheikh and in front of him Ashraf Sheikh inflicted a blow on the head of Gani Sheikh and Ali Wani inflicted a stick blow upon Gani Sheikh but Gani Sheikh stopped the stick blow by his hands. He then talks of Mohd Malik (since deceased) intervening into it when accused Ali Dar inflicted a blow with pipe rod on his head. He then talks of Ali Wani and Reyaz Wani catching hold of deceased Ghulam Mohd Malik and carrying him across the culvert and the other accused also helped the above two accused to take Abdul Gani Sheikh across the culvert. He then states that when he intervened, Abdul Rashid Rather inflicted stick blow on the right side of his head. So far as injury on the person of Gh. He then states that when he intervened, Abdul Rashid Rather inflicted stick blow on the right side of his head. So far as injury on the person of Gh. Mohd Malik (since decased) is concerned, this witness states that when Mohd Malik was lying on the ground, Ashraf Wani inflicted a spade blow on the right side of his head and other accused had beaten him. He further states that the spade blow had resulted into bleeding from the head of Moma Malik (since deceased) It would be relevant to refer to the evidence of PW Farooq Ahmad, another injured witness to the occurrence, who lodged written complaint exhibited as PW 7/2, naming initially four persons as referred hereinabove. While giving flash back of the event that happened on 11-02-2002, a day prior to the occurrence, this witness has stated with regard to the main occurrence that, after offering 'Fajar Prayer' in the Mosque when he came out, Gani Sheikh was first of all and he was being followed by Gh. Mohd Malik. The accused restrained Gani Sheikh and asked him why he had called the army in the evening to which he refused having done so. He then talks of Ashraf Sheikh inflicted injury by an axe blow on the head of Gani Shekh and when Mohd Malik (since deceased) intervened, Ali Mohd Dar inflicted a pipe blow on the left of his head with the result he fall down on the ground. He then states that accused Ali Wani, Ali Dar and Riaz Wani dragged Mohd Malik towards the culvert and started beating him with lathies and Ashraf Wani inflicted a spade blow with the iron part on the left side of his head. He then talks of appearance of Shakeela Bano daughter of Abdul Gani Sheikh who was caught hold by Ali Wani from her hair in which her 'Farran' had also torn out. He also talks of the presence of Bilal Malik at the scene of occurrence who was given injury with a lathi by accused Rashid Rather. He then talks of pelting stones at the house of Gani Shekh. 16. He also talks of the presence of Bilal Malik at the scene of occurrence who was given injury with a lathi by accused Rashid Rather. He then talks of pelting stones at the house of Gani Shekh. 16. The evidence of other prosecution witnesses is almost the same, but for some variations here and there which, in my considered view, would not assume much importance for the reason that certain facts obliterate from the memory of even most truthful witnesses with the passage of time. 17. Reference to investigation conducted in this case also becomes important. PW Head Constable Gh. Ahmed was Incharge of Police Post, Channapora on the date of occurrence. He after preparing the injury sheet of the injured sent them to the hospital for medical examination. In his examination in chief, he states that Moulvi party had also come to the police chowki and accused Ali Wani and his other companions were also injured in this case. Their injury sheets were also prepared and they were referred to the hospital. In his cross examination, this witness has deposed that there are two parties in the village one is that of Ali Mohd Dar and the other is of Moulvi Reyaz and that the dispute in the village relates to the fact that certain people wanted Reyaz to live in the village while certain other wanted to leave the village. He further states that the report which Ali Mohd. had lodged was not entrusted to him for the purpose of investigation. PW Inspector Ali Mohd had also partly investigated the present case after the death of Mohd Malik. In his cross examination, he states that he had investigated the case only on one written complaint. However, he stated that on the record he finds two reports, one presented by Farooq Malik and the other by Gani Sheikh. He was categoric in saying that the FIR was registered on the report of Gani Shekh. He admitted that according to the report of Farooq Malik, five people were arrayed as accused, whereas as per the report of Gani Sheikh, there were as many as 11 accused. He further admits in his cross examination that the complainant party was also detained for some time but later that case was consigned as not admitted. 18. Mr. He admitted that according to the report of Farooq Malik, five people were arrayed as accused, whereas as per the report of Gani Sheikh, there were as many as 11 accused. He further admits in his cross examination that the complainant party was also detained for some time but later that case was consigned as not admitted. 18. Mr. Hussain, however fairly admitted that the FIR registered at the instance of accused party has not been proved on record. He also fairly admittted that the medical examination of any of the injured from accused side is also not proved on the record. Be that as it may, one aspect is however established from the evidence of two Investigating Officers namely Head Constable Gh. Ahmed and Inspector Ali Mohd that the accused side had also received injuries and their injury sheets were also prepared and they were referred to the hospital. Inspector Ali Mohd has stated that the complainant party was also detained for some time but later on, the case was consigned as not admitted. From this, it is apparent that the complainant side had also gone to the police with a counter version. This fact cannot escape the notice of the Court for the purposes of appreciating the prosecution case in its right perspective. 19. Another fact which also requires attention of the Court is to the rough site plan prepared by Head Constable Gh. Ahmed exhibited as PW 23-1 and thereafter another scaled plan prepared by PW Abdul Rashid Patwari which is exhibited as PW 1/1. No doubt, in the rough site plan and the sketch plan, a particular point is shown where Mohd Malik was assaulted by the accused and a point which is infront of Masjid where initially the occurrence has taken place, but what is the exact distance from one point to another point is not made clear by the prosecution. In the site plan between point A and B, a chowk is shown and the prosecution case is that Mohd Malik (since deceased) was dragged from one point to another point. It appears that the occurrence has taken place near the Mosque and around and that the dragging story is cooked up subsequently. In the site plan between point A and B, a chowk is shown and the prosecution case is that Mohd Malik (since deceased) was dragged from one point to another point. It appears that the occurrence has taken place near the Mosque and around and that the dragging story is cooked up subsequently. This fact is further strengthened from the written complaint exhibit PW 1/1 presented by PW Abdul Gani Sheikh which has become the basis of lodging of the FIR and from another written complaint exhibit PW 7/2 presented by PW Farooq Ahmed, the nephew of the deceased. From both these written complaints, only one fact which surfaces is that an occurrence had taken place on 12-02-2002 when Abdul Gani and others had come out of the mosque after offering prayers and were returning back home. 20. In the aforesaid factual backdrop, let us now advert to the injuries received by Moma Malik as reflected in the post mortem report exhibit PW-P-M-1 conducted by Dr. Rafiq Ahmed in which after opening the skull, he noticed haemorrhage measuring 3"x1" in depth and 4" in length on the left side of Central Lobe of cerebral hemisphere of brain. Another haemorrhage was found on the left side of neck. In P.M.R, it is said that ecchymbsis present on left side of neck was reaching to the occipital region of head. This can also be on account of flowing of blood towards the neck because of rupturing of blood vessel on account of head injury. In the opinion of the Doctor, the cause of death was left frontal haemorrhage due to trauma of head. In his cross examination, only material fact which comes on record is that he did not notice any mark of dragging on the dead body of the deceased which fact further strengthens my view that no occurrence, in fact, had taken place near culvert as projected by the prosecution. 21. In the present set of circumstances, the role ascribed to two accused namely Mohd Ashraf Wani and Ali Mohd Dar who stand convicted for the offence punishable under section 302 RFC by the learned trial Judge and also subsequently affirmed by one of the Hon'ble Judges sitting in Division Bench, becomes important for appreciation. 22. 21. In the present set of circumstances, the role ascribed to two accused namely Mohd Ashraf Wani and Ali Mohd Dar who stand convicted for the offence punishable under section 302 RFC by the learned trial Judge and also subsequently affirmed by one of the Hon'ble Judges sitting in Division Bench, becomes important for appreciation. 22. Abdul Gani Sheikh and Bilal Ahmad state that when Moma Malik came on spot in front of the mosque and intervened, Ali Mohd Dar inflicted a blow with an iron rod on his head and he fell down on the ground and thereafter he was dragged to the side of culvert where Ashraf Wani inflicted a spade blow on the head of Moma. Farooq Ahmed also states that accused Ali Mohd Dar inflicted a pipe blow on the left of head of Moma Malik when he intervened, resultantly he fell down. With regard to the injury attributed to Ashraf Wani, this witness states that he (Ashraf Wani) gave a spade blow with an iron part of the spade on the left side of the head. Even if some latitude is extended towards PW Farooq Ahmed with regard to the seat of the injury as to whether it was on the left side of the head or right side of the head, he being a rustic villager, the fact remains that the specific case of the prosecution is that accused Ali Mohd Dar and accused Ashraf Wani had given one separate blow each on the head of Moma Malik, one by iron rod and other by the spade with the iron part. Incidentally, the injury on the head is only one i.e left side. It is 4" in length. This injury is possible by an iron rod or by the iron part of the spade. Be that as it may, this sole injury which proved to be fatal is attributed to two accused namely Ali Mohd Dar and Ashraf Wani. There is no other injury available on head of the deceased. Therefore, it cannot be said as to who out of two accused is the author of single injury which proved fatal and that being the fact position, accused Ali Mohd Dar and Ashraf Wani, cannot be held guilty for the offence punishable under section 302 RFC individually as held by learned trial Judge. Therefore, it cannot be said as to who out of two accused is the author of single injury which proved fatal and that being the fact position, accused Ali Mohd Dar and Ashraf Wani, cannot be held guilty for the offence punishable under section 302 RFC individually as held by learned trial Judge. They cannot be even held liable for the offence punishable under section 304 Part I or II RFC and, therefore, the only conclusion is that they are liable to be convicted for the offence punishable under section 325 RFC only. 23. In my considered view, recording of conviction of Mohd Ashraf Sheikh under section 307 RFC by the learned trial Judge also deserves to be disturbed for the reason that the prosecution has not been able to prove the said charge against this accused beyond reasonable doubt for the reasons that the injury on the person of Abdul Gani Sheikh on his head runs contrary to the medical evidence and it is otherwise not proved beyond doubt that the head injury suffered by Abdul Gani Sheikh is the injury on account of an assault by an axe which accused Mohd. Ashraf Sheikh was holding or it is on account of the stick blow which accused Ali Wani was holding in his hands. It appears that Abdul Gani Sheikh when stepped into the witness box exaggerated the true version stating that his wound was stitched, whereas the medical evidence is absolutely contrary to it. Under these circum- stances, it becomes unsafe to hold the accused Mohd. Sheikh Sheikh guilty for the offence under section 307 RFC. No doubt, this accused along with his other co-accused caused injuries to the complainant side for which he has to be held liable. 24. Having said so, the case of the prosecution now remains to be tested vis-a-vis the charge of section 149 RFC for which the accused have been acquitted which constrained the State to file acquittal appeal. As stated above, one of the Hon'ble Judges (Brother Hali-J) of the Division Bench has also held five accused out of thirteen accused guilty for the substantive offences with the aid of section 149 RFC. 25. As stated above, one of the Hon'ble Judges (Brother Hali-J) of the Division Bench has also held five accused out of thirteen accused guilty for the substantive offences with the aid of section 149 RFC. 25. Scope of section 149 RFC was explained in case Mizaji v. State of U.P, reported as AIR 1959 SC 572 which decision has been followed in many later cases in the following manner: "[The first part of section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression "know" does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there maybe cases which would come within the second part, but not within the first. The distinction between the two parts of section 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part". In every case it would be an issue to be determined whether the offence committed falls within the first part of section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part". In Allauddin Mian v. State of Bihar, reported as AIR 1989 SC 1456 , the import of section 149 IPC was explained as under: "This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be safely construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of section 149IPC. It is not the intention of the legislature in enacting section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke section 149 it must be shown that the incriminating act was done to invoke section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. In order to invoke section 149 it must be shown that the incriminating act was done to invoke section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particularly offence being committed in prosecution of the common object they would be liable for the same under section 149 IPC". 26. Let us examine the present case on its own facts applying the ratio of aforesaid judgments. The evidence available on record is that it is a case of group rivalry in which the normal tendency is to rope large number of persons by knitting a net wider and this aspect the Court should not normally overlook. In the present case also for very few injured persons, thirteen accused have been shown present in front of the Mosque armed with different weapons. In fact, these are not the weapons, but agricultural implements which are commonly kept and used by agriculturist Community. Another feature in the present case is that but for ascribing specific role to some of the accused, the other accused are allegedly shown to be involved in damaging the property (window panes etc.) of house of complainant Abdul Gani Sheikh by levelling common allegations. Another feature of the present case is that a complaint was lodged by the accused side also which was verified by the police. This fact has also come in evidence from the statement of one of the Investigating Officers, that some persons from the side of the accused had also received injuries and were sent to Doctor for their medical treatment. No doubt, the accused have not been able to place on record any documentary evidence with regard to the cross version or the injuries suffered by them, nevertheless an oral evidence is available on record, that too, from the mouth of two Investigating Officers that a cross complaint was moved to the police from the accused side and investigated as well. The Court is conscious of the fact that the accused side is not able to substantiate their defence as recorded in their statements under section 342 CrPC to the effect that a fight ensued between the complainant and the accused side in which Moma Malik incidentally intervened and received injury on the head at the hands of some one which fact the accused side tried to strengthen by adducing defence evidence also, but at the same time from the entirety of facts and circumstances, it can be safely said that there was no motive with the accused which impelled them to commit the murder of Moma Malik as the accused never went with that common object, may be they had assembled by forming an unlawful assembly in front of Mosque with lathies, spades etc., that too on account of some event which happened a day prior to the occurrence. 27. It is well settled that common object of an unlawful assembly is to be ascertained from the act(s) and language of the members composing it and from consideration of all the surrounding circumstances. For determination of common object of an unlawful assembly, the conduct of each of the members of unlawful assembly before and at the time of attack and thereafter the motive for the crime are some of the relevant considerations. In the case on hand, it can be safely held that the common object of an unlawful assembly formed by the present accused was not to commit the murder of Moma Malik who intervened and received one injury on the head. 28. Therefore, in the case on hand, where many aspects are not free from the shadow of doubts, it would be most justified if all the accused are convicted for the offences punishable under sections 325/426/336/341/323 RFC read with section 149 RFC and not in the manner as held by learned trial Court. 29. As an upshot of the aforesaid detailed discussion and after churning the entire prosecution case afresh, in my considered opinion, the prosecution has been able to prove its case against all the thirteen accused for the offences punishable under section 325/426/336/341/323 RFC read with section 149 RFC. 30. 29. As an upshot of the aforesaid detailed discussion and after churning the entire prosecution case afresh, in my considered opinion, the prosecution has been able to prove its case against all the thirteen accused for the offences punishable under section 325/426/336/341/323 RFC read with section 149 RFC. 30. Since the occurrence relates to year 2002 in which most of the accused have already undergone their substantive sentence as awarded by the trial Court and the fact that one of the accused, namely Mohd Ashraf Wani.is serving his substantive sentence for the last more than ten years, ends of justice would be adequately met if the sentence already awarded to them is reduced to the period already undergone by them. Ordered accordingly. 31. Criminal Appeal No. 07/2004 filed by the accused Mohd Ashraf Wani and Ali Mohd Dar and Criminal Appeal No. 08/2004 filed by remaining 11 accused stand allowed to the extent as indicated hereinabove. 32. Opinion rendered by this Court will also follow in Criminal Acq. Appeal No. 1/2005 filed by the State and the same also stands allowed to that extent only. Criminal Reference No. 45/2004 is answered accordingly. Disposed of as such.