RAHMAT ALI Vs. STATE

JUDGEMENT

(1.) Rahmat Ali and Rifaqat All, applicants in this criminal revision were convicted by the learned Assistant Sessions Judge of Unnao of offences under Sections 308 and 323, Penal Code. The former was sentenced to rigorous imprisonment for one year under the first count, and under Section 323 to one month's rigorous imprisonment. Rifaqat Ali was sentenced to three months' rigorous imprisonment for the offence under Section 308, Penal Code, and to fifteen days' rigorous imprisonment under Section 323, Penal Code, but he was given the benefit of Section 4, First Offenders Act, and was ordered to give two sureties of Rs. 1000 and a personal bond in like amount to appear and receive sentence, if necessary, within a period of one year. In appeal Rahmat Ali's conviction under Section 308, Penal Code, was altered to one under Section 325, Penal Code, but his conviction under Section 323 was left unaltered. His sentence was reduced from one year's rigorous imprisonment under the first named section to three months' simple imprisonment and a fine of rs. 150 or one month's further simple imprisonment in default. For the offence under Section 323 he was awarded one month's, simple imprisonment and a fine of rs. 50 or one week's further simple imprisonment in default. The order in respect of Rifaqat Ali was upheld. Dissatisfied with the decision of the Court below the applicants have come up to this Court by way of revision.

(2.) Only one point has been argued by the learned counsel in support of his clients's application and that is to the effect that the accused were entitled to the right of private defence on the facts found proved by the lower appellate Court.

(3.) The case for the prosecution was that on 20-8-1950, there was a marpit between the accused Rahmat Ali and his son Rifaqat Ali on one side and Abdul Wahid and his party on the other. The dispute arose in connection with the erection of a wall which Rahmat Ali was constructing in front of his shop in the town of Unnao. It was said that on Abdul Wahid's remonstrating with the accused, he and his brother Abdul Ahad were attacked and beaten and that the accused continued the assault even after Abdul Wahid had fallen on the ground. The medical evidence showed that Abdul Wahid received twelve injuries including one grievous injury. Rahmat Ali had five simple injuries and Rifaqat Ali had two. The Learned Sessions Judge after a close examination of the evidence arrived at the following conclusions : 1. That the wall which was being constructed by Rahmat Ali was in front of his shop, 2. That there was no dispute between the parties in respect of the land on which the construction was being put up, 3. That it did not cause any obstruction to the passage to the house of Abdul Wahid, 4. That the complainant and his party arrived at the spot at about 4-30 P. M. and wanted to prevent the accused from proceeding with the construction, and 5. That they demolished the wall and this resulted in a free lathi fight between the complainant and his brother on the one side and the accused on the other.