MUNSAR ALI AND ORS. Vs. UNION TERRITORY

JUDGEMENT

(1.) THE petitioners Munsar Ali Torab Khan, Rasul Khan and Manjur Ali were convicted and sentenced by the munsiff -magistrate, Udaipur, Munsar Ali under Section 323 to a sentence of 6 months Rule I and a fine of Rs. 200/ -, Torab Khan and Rasul Khan under Section 326 I.P.C. to 18 months Rule I each and Manjur Ali under Section 326 I.P.C. to Rule I for 6 months. In the appeal filed by them the learned Sessions Judge upheld the conviction of Munsar Ali under Section 323 I.P.C. but reduced his sentence to 1 month's Rule I and a fine of Rs 100/ -. He also confirmed the conviction of Torab Khan and Rasul Khan but reduced their sentences to 1 year's R.I. each. In the case of Manjur Ali he altered the conviction to one under Section 323 I.P.C. from Section 326 I.P.C. and he reduced his sentence to one month's R.I. and a fine of Rs. 100/ -. The petitioners have now come up in revision.

(2.) THE occurrence out) of which this case arose took place in the morning of 29 -3 -195. According to the prosecution, Munsar Ali attempted that morning to forcibly occupy a land belonging to P.W. 3 Bajlu Mia. It was alleged by the prosecution that the elders of the village like P.Ws 4, 5 and 6 had demarcated the lands of Munsar Ali and of Bajlu Mia a few days before the occurrence that the land where the occurrence took place fell in the portion of Baiju Mia and that when Manjur Ali attempted to occupy that land on that morning, Bajlu Mia approached P.Ws 4 -6 and P.Ws 4 -6 along with other P. Ws went to the place and P. Ws 4 -6 tried to prevent any untoward incident and to pacify the accused persons who had already got ready with dao and lathis. But P.Ws 4 -6 did not succeed and the accused were said to have rushed towards Baiju Mia's party and inflicted injuries on P.W. 3 Bajlu Mia, P.W. 8 Badsa Mia, P.W. 9 Sultan Mia. Some of the injuries on Bajlu Mia and Badsa were grievous while those on Sultan Mia were simple. Torab Khan and Rasul Khan were said to have inflicted the grievous injuries on Bajlu Mia and Badsa Mia with daos, and Munsar Ali and Manjur Ali were said to have caused simple injuries on Badsa Mia and Bajlu Mia. Seeing the fight P. Ws 4 -6 were said to have retreated from the place since they did not want to get hurt themselves. It is for these offences that the accused persons were convicted and sentenced as stated above.

(3.) WHAT was urged before me in revision was that the lower courts had not properly considered the evidence relating to the possession of the land or relating to the exercise of the right of private defence or to the provocation which the petitioners had and that on a proper appreciation of the evidence the petitioners ought to have been held not guilty, even though P. Ws 3, 8 and 9 have been injured in the occurrence. My attention was drawn in particular to the evidence of P. W. 5 Moulana Abdul Hamid, a respectable man who was admittedly present, according to the prosecution, at the time of the occurrence. P. W. 5 had given definite evidence that the occurrence took place 10 to 12 cubits off in the south -east region of Munsar Ali's cow -shed and that the said land was in the possession of Munsar Ali. My attention was also drawn to the evidence of D. Ws 1 -5, all of whom had stated that they knew the disputed land and it was in the possession of Munsar Ali. It was further pointed out that out of P. Ws 2 -9 gave direct evidence about the occurrence and about the possession of the land, P. Ws.2,3 and 7 -9 belonged to Bajlu Mia's party and that their evidence was interested and should not have been relied on.