KHARKAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal by special leave against the Judgment of the High Court of Allahabad in Criminal Appeal No. 1597 of 1960 decided on February 15, 1961. The appellants are eight in number and they have been convicted under S. 325 read with S. 149 of the Indian Penal Code and sentenced to three years rigorous imprisonment. They have also been convicted variously under Ss.147 and 148, Indian Penal Code and sentenced to smaller terms of imprisonment which need not be mentioned as those sentences are made to run concurrently with the above sentence. They were originally charged under S. 302 read with S. 149, Indian Penal Code for the murder of one Tikam on January 24, 1960 at about noon in village Nandgaon Police Station Bartana District Mathura. The Sessions Judge, Mathura did not think that a case of murder was made out and convicted them of the lesser offence. Their appeal to the High Court was dismissed and the conviction and sentences were maintained.

(2.) There was yet another trial at which these eight persons and four others were tried under S. 307/ 149, Indian Penal Code for causing hurt to one Puran with such intention and under such circumstances that if by that act they had caused his death they would have been guilty of murder and also under Ss. 147 and 148 of the Penal Code for being members of an unlawful assembly, the common object of which was an attempt on Puran's life. The learned Sessions Judge, Mathura held in the second case that the injuries sustained by Puran warranted an offence under S. 323, Indian Penal Code. The accused and Puran compounded that offence and all the accused were acquitted. The Sessions Judge, however, convicted 11 out of the 12 accused under Ss.147 and 148, Indian Penal Code and awarded them different sentences, according to the weapons possessed by them. One Koka was acquitted because his plea that he was blind from birth was accepted. The 11 accused in the second case appealed to the High Court and were acquitted of the charge of being members of an unlawful assembly. That judgment of the High Court was delivered on January 31, 1961, in Criminal Appeal No. 1598 of 1960, fifteen days before the confirmation of the conviction and sentences of the eight appellants in this appeal. The facts of the case may now be given.

(3.) There was enmity between Tikam (deceased) and the appellants and on January 24, 1960, just about noon time Tikam was sitting at the shop of a blackmith in village Nandgaon. Dulli and Nathi who were examined as P.Ws. 2 and 3 were sitting near him. The appellants who were armed with Ballams, a Pharsa and Lathis arrived on the spot and on seeing Tikam started to assault him. Tikam was severely injured and fell in a ditch adjacent to the road but even after he fell in it the assault was continued by the appellants. He died the same day about five hours later. After assaulting Tikam, these appellants decided to ransack his house and started towards it. On the way they were met by the other four accused and this brought their number to twelve. While they were going to the house of Tikam they saw Puran and decided to beat him. Puran was assaulted and the second case arose out of the assault on him.