Srinagar: In the 2011 free fight incident at Ahle Hadees Masjid, Kanihama, Chadora, the High Court has directed the trial court to charge the main accused under the offences of murder rather than culpable homicide.
Justice Rajnesh Oswal while hearing a revision petition by the State against the main accused Abdul Majeed Ganai and Mohammad Ayoub Ganie, sons of Gani Ganie, directed the Principal Sessions Judge, Budgam, to frame the formal charge against the first two respondents for commission of offence under section 302 RPC and other offences mentioned in its order of December 2011.
“The order dated 12.12.2011 is set aside to the extent of discharging the respondent Nos. 1 and 2 from the commission of offence under section 302 RPC and charging them for commission of offence under section 304-II RPC,” it directed, adding that the bench has not expressed any opinion on the merits of the claims of the parties.
According to the police, on April 29, 2011, at around 1 pm, when people started coming to the mosque for offering Friday prayers at the Masjid Ahle Hadees at Kanihama, there was hue and cry in the mosque as two factions of the sect attacked and started beating each other.
“One Mohammad Ismail was seriously injured, who was referred to hospital. On the report of the SHO, an FIR bearing no. 51 of 2011 was registered on 29.4.2011 for commission of offences under section 120-B, 148 (rioting), 149, 342, 307, 295-A, 353, 510, 323 RPC with police station Nowgam”, said the prosecution.
It further said “while the investigation was continuing, injured Mohammad Ismail succumbed to injuries. After recording statement of the witnesses under section 161 and 164-A CrPC, the Investigation Officer established offences under section 120-B, 148, 149, 307, 342, 295 A, 153-A, 353,323 RPC against all the accused persons (respondents) other than the respondent No. 1 and 2.”
The offence under section 302 RPC (murder) was established against the respondents No 1 and 2 only besides other offences as mentioned above.
After filing of the chargesheet, the trial court discharged the respondent No 1 and 2 in respect of offences under section 302 RPC, and charged them under section 304 Part-II RPC.
The trial court extracted a statement of witness constable Mohammad Lateef wherein he has stated that at 12 noon there was hue and cry inside the mosque after people entered there to offer prayers. They attacked each other with ‘dandas’ (sticks and batons), hands and fists; the property of the mosque was damaged and one person Mohammad Ismail was seriously injured in this fight.
The trial court also proceeded to observe prosecution witnesses Mohammad Maqbool, Mohammad Akbar, Aijaz Ahmad and Mushtaq Ahmad, who in one voice in their respective statements stated that there was free fight between the two factions in the mosque. Due to this the mosque was damaged and Mohammad Ismail and Nowshad Ahmed, “who was drunk”, were injured.
The High Court after perusing the case observed “the trial court has appreciated the statements of the witnesses made during investigation, as if it was passing the final judgment after conclusion of the trial. It appears that the trial court was swayed by the fact that the deceased was hit by the accused only once and there was a free fight between the two parties”.
It said “this court has not even an iota of doubt in its mind that the trial court has in fact conducted a mini-trial and has come to the conclusion that the respondents 1 and 2 had no intention to cause the death of the deceased and the deceased had died due to sudden fight between the two rival factions of Jamiat-e-Ahle Hadees”.
