AYYUB Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) This is a criminal appeal against the judgment and order dated 18-11-1980 passed by Sri Vishnu Chandra, the then Vth Add. Sessions Judge, Saharanpur in S. T. No. 272/1980 State v. Ayyub and others convicting and sentencing the appellants to R.I. for two years under Section 308 read with Section 34, I.P.C. and to R. I. for one year under Section 323 read with Section 34, I.P.C. Both the sentences would run concurrently.

(2.) The prosecution case in a nutshell is that one-Jimmu has four sons namely Rahmat, Fakkar Budhu and Mushtaq. Ramzani is the son of Rahmat. Budhu has two sons namely Jameel-injured and Barkat-injured. Barkat has one daughter namely Km. Naeema. Mushtaq has two sons namely Ayyub-accused and accused- Mustaqeem. Ayyub and Mustkim are the cousins of Barkat Ali-complainant. For the <IMG>JUDGEMENT_1227_CRLJ_2006Image1.jpg</IMG>

(3.) After the death of Jimmu, his land was entered in the name of his four sons. There was consolidation in the village and one chak was formed in the name of Mustkim and Ayyub accused who are the sons of Mushtaq. The other chak was entered in the name of Rehmat. Fakkar and Budhu and this chak is about 48 bighas kachcha in area and is in the south of village. Fakker's wife died many years ago. Although, the chak in the name of Fakkar, Rehmat and Budhu was not legally partitioned, but each one was in possession of his respective share on the spot. It is alleged that about ten years ago Fakkar had executed an agreement for sale in respect of his share in favour of Barkat, Zamil and Ramzani and since then they had been in possession of it. Three months before the occurrence Mustkim had got a sale deed executed in respect of the land of Fakkar in his favour and on the basis of that he had applied for mutation for which Barkat and others had filed objections and there was a dispute about the land and the accused persons wanted to take forcible possession of it. In the disputed land Barkat had sown Munji sugarcane and Chan and on the alleged date, time and place of occurrence Barkat and his brother Zamil were weeding the Munji crop. Barkat's daughter Km.Naeema had gone to the field with the meals for Barkat and Zamil and she was also there at that time It is alleged that at about 7 or 7:30 p.m. accused Mustkim, Ayyub and Kalu accompanied with Fakkar armed with lathis came there and started beating Barkat and Zamil and Km. Naeema. On the hue and cry, Hamid, Saddiq and others reached there who intervened and saved them. Zamil had received a lathi blow on his head and he had become unconscious on the spot. Barket has also wielded lathi on the accused persons in self-defence. Zamil was taken to the village and from there Barkat took Zamil and Km. Naeema to the police station where he lodged a report at 8.45 a.m. The injuries of Barkat and Km. Naeema and Zamil were medically examined by Dr. Madan Mohan, Medical Officer, P.H.C. Bhagwanpur the same day from 9 :15 to 9 .45 a m The investigation was entrusted to S I Jai Prakash Tyagi (PW-6), who prepared the site plan (Ex,Ka.8) and recorded the statements of the prosecution witnesses. Later part of the investigation was done by S. I. Brijpal Sharma who submitted the chargesheet. The investigation was taken up as usual which culminated into the submission of the chargesheet Accused Fakkar had not been committed to the Court of Session as he was not available and, therefore, his case was separated from the present appellants-accused.