MAIDE KHAN Vs. STATE

JUDGEMENT

(1.) THIS is an application in revision by Maice Khan and Saide Khan against their conviction under Section 326 of the Indian Penal Code. Each of them has been sentenced to rigorous imprisonment for one year.

(2.) THE case of the prosecution against them was that on 2nd March, 1962 at about 1 P. M. Saide Khan Petitioner drove his flock of sheep numbering about 500 into the field of Mohkamsingh (P. W. 2) and Rajendrasingh (P. W. 7) where sarson crop was standing. It is said that the sheep caused considerable damage ft the standing crop. Mehkamsingh and Rajendrasingh then collected the sheep and started for talwara cattle pound to put them there. It is further said that while Mohkamsingh and Rajendrasingh were only a mile away from Talwara, The petitioners along with three other persons namely Umarkhan, Phalak Sher and Sattarkhan riding on horses reached there. Umarkhan and Maidekhan were aimed with Sailas, Saide khan was armed with agandasi, Phalak Sher had a rifle and Sattar-khan a lathi with him. These persons asked Mohkamsingh and Rajendrasingh to release their sheep. On their refusing to do so, they assaulted them with the arms that they were carrying. Rajendra Singh sustained as many as 17 injuries. Out of which 10 were simple injuries caused with a blunt object. One injury with a blunt object was grievous. He had three punctured wounds, three cut wounds and one incised wound. One cut wound which had caused fracture of right ulna bone was grievous. Mohkamsingh received only one injury and that was punctured wound 25"x2"x2" on left fore-arm laterally near shoulder. It was caused by some pointed weapon and was simple.

(3.) ON a report of the occurrence being mads the police held an investigation and put up a challan against the petitioners only No challan was put up against umarkhan phalak Sher and Sattarkhan. The petitioners were fried by the Assistant sessions Judgal, Hanumangarh who on a consideration of the evidence led in the case did not believe that prosecution case that the petitioners sheep had entered the field of Mohkam Singh (P. W. 2) and Rajendrasingh (P. W. 7) and had caused damage to their saison crop. The learned Assistant Sessions Judge, further came, to the finding that the art of taking away the sheep by Rajendra Singh and mohkamsingh to the cattle pound did not amount to the offence of mischief or theft and as such the petitioners had no right of private defence of property, in the opinion of the learned Assistant Sessions Judge, three persons against whom challan was not put up by the Police had also participated in the crime. In view of the above finding the learned Assistant Sessions Judge convicted the petitioners under Sections 326, 325, 324 and 323 read with Section 34 of the Indian Penal code and sentenced them to various terms of imprisonment under the aforesaid sections.