BHAROSA AND OTHERS Vs. STATE

JUDGEMENT

(1.) JUDGEMENT BEG, J. -The appellants Bharosa, Charittar and Shital were charged with offences under Ss. 148, 302/149, 328/149 and 323/149, Penal Code and the learned Judge who tried them together with the acquitted accused persons, Dwarika and Deoraj, took the precaution, very properly, of charging them in the alternative with offences under Ss. 302, 326 and 323, Penal Code - with the aid of S. 34, Penal Code. Charittar appellant was also charged separately under S. 302, Penal Code. The appellants were convicted under S. 304, Part I, Penal Code and Ss. 326 and 323, Penal Code read with S. 34, Penal Code, in each case, and were sentenced to seven years, four years, and six months R. I. respectively.

(2.) ACCORDING to the prosecution case, Shiv Dayal deceased Girdhari and Bijai, who were alleged to be in possession of plot No. 131 of village Usari Khurd, in the district of Azamgarh had obtained a decree on 13-7-1962 from the Court of a Munsif restraining Sobaran and others from interfering with what was held to be the decree-holders possession over plot No. 131. It is also the prosecution case that 9 days after this decree, on 27-7-1962, Shiv Dayal, Girdhari, Hira, (P.W. 6) and Bijai (P.W. 1) were ploughing plot No. 131 as well as the adjoining plots Nos. 130 and 132 when Sobaran (also deceased) and the accused person carne armed with lathis and spears and asked Shiv Dayal not to plough there as an appeal was going to be filed against the decree. The defence also admits that Shiv Dayal had obtained a permanent injunction, but it is alleged by it that Sobaran was actually in possession in spite of the decree obtained on incorrect allegations. The defence case also is that Sobaran did not come in the company of other accused persons but came alone to request Shiv Dayal and others not to plough the field as he was in possession. It is also alleged here by the defence that there were mends between plots Nos. 130 and 131 and 132 which were being ploughed up by Shiv Dayal and others so that Sobaran had to come and protest.

(3.) THE principal point which has to be determined in this case, where each side alleges that the other was the aggressor and that the injuries caused by it were during the course of the exercise of a right of private defence, is : How did the occurrence start or who was the aggressor ?