DANNEY KHAN Vs. STATE

JUDGEMENT

(1.) This is an appeal from the judgment of the 1st temporary Civil and Sessions Judge, Bareilly, convicting the appellants under Sections 302 and 323 read with Section 149, I.P.C. They have each been sentenced to 3 months' rigorous imprisonment under Section 323/149 I.P.C. Danney Khan and Naushey Khan have each been sentenced to death under Section 302/149 I.P.C. and the rest to imprisonment for life under that section. Except Banney Khan, they all have been further convicted under Section 147 I.P.C. and sentenced to one year's rigorous imprisonment. Banney Khan has been convicted under Section 148 I.P.C. as he is alleged to have been armed with a bhujali, and has been sentenced to one year's rigorous imprisonment. There were in all 11 accused in this case who were put on trial under Sections 147, 148 302/149 and 823/149 I.P.C. Four of them, namely, Jhabbu Khan, Amir Khan, Kaley Khan and Saeed Khan, have been acquitted on the various charges levelled against them. Along with this appeal there is also before us the usual reference by the learned Sessions Judge for the confirmation of the sentences of death passed against Danney Khan and Naushey Khan.

(2.) The accused Danney Khan, Banney Khan and Naushey Khan are brothers and sons of Mohammad Khan. The accused Aslam Khan, Dilsher Khan, Ismail Khan and Mohammad Husam are said to be the friends of Danney Khan. Except Mohammad Husain, who is a resident of village Nagla in the district of Bareilly, the remaining accused are all residents of the same village Aspur Khera also within the same district. It appears that Danney Khan, Banney Khan and Naushey Khan were the tenants of the plot No. 292 in village Khera. They had given this plot on lease to Tota Ram about 10 or 12 years before the occurrence and had executed a registered deed of lease in his favour. It may be mentioned that Tota Ram (P. W. 2), Bholey, Janki Prasad and Sohan Lal are members of a joint family and they had all been cultivating the aforesaid plot after having obtained the lease. It is alleged by the prosecution that after the expiry of the period of five years, for which the lease of the said plot had been given to them, they continued in possession of the said plot and became its adivasi when the Zamindari Abolition and Land Reforms Act came into force, that after Tota Ram became adivasi he stopped paying rent to Banney Khan and his brothers and began to pay it to the Government. It is further alleged that in 1956 Tota Ram had sown sugarcane crop in this plot, that Banney Khan and his brothers began to disturb his possession and wanted to forcibly cut the sugarcane crop which stood in the plot and thereupon Tota Ram started proceedings under Section 145 Cr.P.C. which ended in his favour on 2-7-1956. During the proceedings under Section 145, Cr.P.C., Banney Khan and his brothers forcibly cut half portion of the sugarcane crop which was under attachment. In 1957 Banney Khan and his brothers applied for the correction of village papers in respect of the said plot but their application was dismissed. After the dismissal 9f this application Banney Khan and his brothers forcibly cut the crop of Tota Ram which stood in this plot. They also asked Tota Ram not to go near the plot in dispute and threatened to kill him if he went there. In 1957 Tota Ram had sown jowar and arhar crop in the disputed plot. Banney Khan and his brother reploughed the plot in dispute and thereby destroyed the crop which had been sown in it. On 5th August 1957 at about 2 P.M. Tota Ram was constructing the 'maind' of the disputed plot and Janki Prasad, Sohan Lal and Bholey were ploughing and sowing it. It is alleged that the accused came to the plot in dispute. Banney Khan was armed with a bhujali while the rest were armed with lathis. Banney Khan, Danney Khan and Naushey Khan beat Janki Prasad with lathis and bhujali. The remaining accused beat Sohan Lal and Bholey and caused injuries to them. Tota Ram was at a distance in one corner of the field, and was not attacked by the accused. He raised alarm which attracted the attention of the persons who were working in the nearby fields. They came to the help of Tota Ram and others and thereupon the accused went away.

(3.) The report of the occurrence was made by Sohan on the same day (5th August 1957) at 4.30 P.M. It was registered under Section 147/307 I.P.C. and all the 11 accused were named in it. Tota Ram, Bholey and Janki Prasad also went to the police station with Sohan Lal. Janki Prasad, whose condition was serious, was taken there on a cot. After the report Sohan Lal, Bholey and Janki Prasad were sent to Baheri Dispensary for medical examination and treatment. Janki Prasad died on the way and his dead body was taken to the Dispensary. Information of the death of Janki Prasad was sent to P.S. Deorania and thereafter the charge was amended to one under Section 302 I.P.C. The inquest report of the dead body of Janki Prasad was prepared at the police station and thereafter it was sent to Bareilly for post mortem examination. Sohan Lal and Bholey were examined by Dr. Sri Ram Saxena, Medical Officer. Baheri dispensary, on the 5th August 1957 between 7.30 and 8 P.M. Bholey had 2 injuries, one of which was a contused wound 1/2" x 1/8" x skin deep on outer aspect of left forearm 3 1/2" above left wrist joint, and the other was a bruise 2"x1" on back aspect of left leg in upper part 4" below the left knee joint. Both these injuries were simple. Sohan Lal had four injuries consisting of a contused wound 2 3/4" x 1/4" x 1/4" deep on right side of head, back aspect, in upper part near the tutt of hairs 4" away from the right ear, a bruise 3 1/2" x 3/4'' on outer aspect of right arm in upper one-third part, a bruise 3 1/2" x 3/4" on right side of back 2" below the right axilla and another bruise 6" x 1" on right side of back in upper 1/2" part. All these injuries were simple.