AZAD KHAN Vs. STATE OF U.P

JUDGEMENT

(1.) This appeal arises out of judgment and order dated 18.9.1981 rendered by Session's Judge, Kanpur in S.T. No. 595 M of 1980, State Vs. Azad Khan & others, u/s 302/34, 324/34 I.P.C. P.S. Bithoor, District Kanpur. By the impugned judgment, both the appellants, though acquitted u/s 302/34 and 324/34 but were convicted u/s 304(II) I.P.C. and were sentenced to 7 years R.I. Their another sibling brother Fazal Khan, however, was acquitted of all the charges by the Ld. trial Judge, by the impugned judgment.

(2.) Background prosecution allegations against the appellants indicate that on 1.10.1978 at 3.45 p.m. Jamal, P.W.5, was grazing his she-goats near the agricultural field of appellant Azad Khan. The cattle intruded into lahi (mustard) field of the appellants, on which, appellant Azad Khan slapped Jamal, P.W.5, who, crying, returned back to his house and narrated the incident to his father Hazi Saleem (deceased). Hazi Saleem came to appellant's field and remonstrated them for slapping his son. This infuriated the appellants, and their acquitted brother, who all started assaulting Hazi Saleem with their respective weapons. Accused Afzal Khan was armed with an axe, whereas rest of the two were armed with lathi. Commotion of scuffle between both the fractions attracted Haleem, P.W.2, Kamal, sons of the deceases, Dullu, P.W.3, and Rasuli, P.W.4 at the assault scene, who all intervened into the marpeet and saved the deceased. Accused Azad Khan was apprehended at the spot by the prosecution witnesses, whereas two others escaped from the spot. Sustaining injuries Hazi Saleem, injured, later on deceased, squatted on the ground and became unconsciousness. On a cot, he was brought to his house by his sons along with apprehended accused Azad Khan. Haleem, P.W.2, got scribed a F.I.R., Ext. Ka.2, from one Tahir Husain, travelled to police station Bithoor and lodged his FIR as Crime No.147 of 1978, under Section 324 I.P.C. at 5.30 p.m. same day.

(3.) Head Constable Ram Badan Singh, had registered the crime by preparing Chik F.I.R., Ext. Ka 13 and GD entry, Ext. Ka-14. After demise of injured Hazi Saleem, same constable had converted the crime under Section 302 I.P.C. by inking GD entry, Ext. Ka-15.