NARAIN AND OTHERS Vs. MUNSHI

JUDGEMENT

(1.) This is an appeal by special leave from a judgment and order of the Allahabad High Court setting aside the order of acquittal of four persons by a Magistrate of Mathura and holding the acquitted persons guilty of charges under Sections 323/34 I.P.C., 324, 325/34 I.P.C. and 328/34 I.P.C. and passing different sentences on each of the counts, the sentences to run concurrently.

(2.) On behalf of the appellants points were raised questioning the legality of the hearing of the appeal before the High Court and the propriety of the ex parte hearing before the said court but as we are satisfied that the appellants are entitled to succeed on the merits, we refrain from expressing our views thereon.

(3.) The facts of the case in short are as follows: Bhaggar and Heta who were closely related owned contiguous houses in the village of Ahuri. There had been litigation in civil courts between Heta and members of Bhaggar's family with regard to a drain. Bhaggar's house was mud-built, whereas Heta's was a pucca structure. According to the complaint lodged in this case by Heta's nephew Munshi, the accused Narain and Bahupi, sons of Bhaggar and Shibbo and Ghanshyam, sons of Tikam had closed the drain in from the side of Beta's house with the result that the water was flowing inside the said house. Heta started cleaning the drain whereupon the accused persons came armed with lathi and asked Heta to stop. As Heta did not comply with the request the accused beat him with lathis. Amar Singh and Govinda who had gone to Heta's rescue were also assaulted. Narain had a sharp-edged blade fixed to his lathi. Govinda and Amar Singh wielded their lathis in self-defence. An information had been lodged at the police station and the injured medically examined. The version of the defence before the Magistrate was that Heta was cleaning a drain on the top of his house to let out the water lodged thereon which would have resulted in water falling on the mud-built house. Not listening to the protests against Heta's action by Ghan-shyam, Heta, Munshi, Amar Singh and Govinda started to beat him.