FAIYAZ KHAN Vs. REX

JUDGEMENT

(1.) Six persons, lddu Khan, Chhunnu Khan, Mallu Khan, Faiyaz Khan, Mindu Khan and Yasin Khan were prosecuted for offences under Sections 147, 304, 323 and 149, Penal Code and Section 24, Cattle Trespass Act for forming an unlawful assembly with the common object of rescuing their cattle from Paqir Mohammad and Ammi Khan; and for committing a riot and for causing simple hurt to Ammi Khan and the death of Faqir Mohammad. They have been convicted and sentenced to various terms of imprisonment. They have come up in appeal to this Court.

(2.) The prosecution case was that on 3rd July 1946, at about 4 p.m. the cattle of the accused Faiyaz Khan, Mallu Khan and Yasin Khan trespassed into the sugarcane field of Ammi Khan and his father Faqir Mohammad deceased, Faqir Mohammad and Ammi Khan were at that time engaged in sowing paddy in another field at a distance of about 100 paces-from their sugarcane field. When they found that cattle were grazing in their field, they drove away the cattle and were taking them to the cattle pound in the neighbouring village Kundra. When they had proceeded a little, the six accused came armed with lathis and demanded the release of the cattle by show of force, Ammi Khan and Faqir Mohammad refused to comply with the demand; whereupon Mallu Khan and lddu Khan gave lathi blows on the head of Faqir Mohammad as a result of which his skull was fractured and he died, and the other four persons, namely, Chhunnu Khan, Mindu Khan, Yashin Khan and Faiyaz Khan gave lathi blows to Ammi Khan. Ammi Khan received simple injuries. None of the accused admitted his presence at the time of the occurrence and they all pleaded alibi.

(3.) The prosecution produced four witnesses, These were Ammi Khan, who was himself injured, Dildar Khan, Fateh Sher Khan and Pidda Husain. Abdullah Khan, the witness mentioned in the first information report, was not examined by the prosecution but was examined by the Court under Section 540, Criminal P. C. The evidence of the prosecution witnesses establishes that Idda Khan and Mallu Khan struck Faqir Mohammad on the head and that Chhunnu Khan, Mindu Khan and Yasin Khan struck Ammi Khan with lathiB. Some prosecution witnesses name Faiyaz Khan also a one of the assailants of Ammi Khan. The medical report is that Faqir Mohammad received two injuries on the head and that Ammi Khan received three injuries on his body. These were all simple. Faqir Mohammad's injuries on the head were very near each other. The learned Counsel appearing for the accused has argued that it is improbable that they should have been caused by two persons, I do not, however, see any improbability in this in the face of the positive evidence that lddu Khan and Mallu Khan struck Faqir Mohammad on the head. I do not think the mere fact that the injuries were very close to each other would enable me to hold that lddu Khan and Mallu Khan were not. telling the truth.