MUNIR AHMED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal by Munir Ahmed, Pir Box, Bashir Khan, Hanif Khan, Bhanwaru Khan, Ghand Khan, Yusuf Khan and Mst. Patasi is directed against the judgment of the Additional Sessions Judge, Churu, dated 27th June, 1975, convicting the appellants as under: 1. Munir Ahmed under Section 304 Ten years' Rule I.Part I, I.P.C. and a fire ofRs. 1010/ -, in de -fault one year's further Rule I.2. Pir Box )under Section 324, I.P.C. Each sentenced totwo 5 ears Rule I.3. Bashir Khan)under Section 323 I.P.C.4. Hanif Khan ) ) each convicted under) Section5. Bhanwaru Khan ) 323, I.P.C. and sentenced) to one year's rigorous6. Chand Khan ) imprisonment7. Yusuf Khan ) 8. Mst. Patasi under Section 323I.P.C. Six months' rigo -rous imprisonment

(2.) THE prosecution case against the appellants was as follows : On 24th June, 1947, at about 1.30 pm. Allahdin son of Saduleh khan, deceased, was standing beneath a tree of 'Tall' (sheesham), Niyamat son of labdhi Khan approached him and asked why he had abused the former's Mother. Allahdin replied that he did not use any abusive language to Niyamat's mother. Niyamat son of Labdhi Khan resented the reply given to this by Allahdin and began to abuse the latter. At that time Saduleh khan, deceased was sitting inside a nearby house of Saduleh Khan S/o Jasu Khan, hereinafter referred to as Saduleh Khan, injured. On haring the altercation that ensured between his son Allahdin and Niyamat son of labdhi khan, the deceased came out and enquired about the cause of quarrel from his son. Meanwhile Niyamat son of labdhi khan gave a push to Allahdir, as a result of which the latter, being a lame person, fell dow. Mst Haliman on seeing Allahdin being pushed in a violent manner, rushed to the pot and enquired from Niyamat son of labdhi Khan as why he was beating a lame person. Thereupon, Niyamat son of labdhi khan cried fin aloud tone that he would beat him. On hearing his cries, the appellants and Niyamat Khan son of Ahmed Ali khan and Niyamat Khan son of Labdhi khan and other persons having armed themselves with Barchis and lathis came from the house of Manuddin khan which Jay adjacent to the tree of 'Tali'. Munir Ahmed, Gulam kadar, Pir buz, bashir khan appellants and Niyamat son of Ahmed khan had Barchis in their had while the other appellants an niyamat Khan son of labdhi khan, who has not preferred any appeal were armed with lathis. On seeing the appellants and niyamat Khan son of Ahmed Khan reaching the spot, also came out of a nearby house of Bashir khan, where in they were playing cards. Bashir Khan owner of the house. Was sleeping at that time Saduleh Khan, injured, also rushed out of his house to the place of occurrence on hearing the cries of the appellant, such as, 'maro maro'. The appellants, Niyamat Khan son of Ahmed Ali khan and Ali khan and Niyamat Khan son of Labdhi Khan surrounded Saduleh Khan deceased and Saduleh khan, injured, and started beating them with Barchis and lathis, Pir Box appellant, appellant and one Gulam kadar struck blows on the head of Saduleh khan, deceased, with the reverse side of their Barchis. Thereafter, Niyamat khan son of Ahmed Ali Khan inflicted a blow on the left side of the neck with the reverse side of his barchi. Thereafter, Munir, Ahmed appellant struck blows on the head of the deceased with the sharp side of the barchi. As a result of theise blows, the deceased fell down. Niyamat khan son of Labdhi Khan struck two lathi blows one of the right parietal region and the other of the right elbow of the deceased, while the latter was lying on the other on the right elbow of the deceased, while the latter was lying on the ground. Sadhuleh Khan, injured, rushed to the rescue of the deceased, but at the instigation of Munir Ahmed, Pir Box, appellants and one Gulam Kadar, he was beaten by Chand khan, Yusuf, hanif khan, and Bhanwaru khan appellants with lathis Bashir khan and Pir Bux appellants also inflicted blows on the left elbow and bead of Saduleh Khan injured respectively, as a result of which the latter fell down. After he had fallen all the appellants started beating him. On seeing his father being beaten by the appellants and Niyamat Khan son of Ahmed Khan yusuf Khan ran to protect him but he was beaten by Mst. Patasi appellant who inflicted a lathi blow on his left palm Yusuf khan S/o Saduleh Khan injured again tried to intervene but he was caught hold of by one Ibrahim, who advised him not to risk his life. The appellants, Niyamat son of Ahmed Khan and Niyamat Khan son of Lasbdhi Khan went towards their houses after the 'Marpit' was over. After the assailants had gone from the place of occurrence Yusuf Khan with the help of other appellants lifted up his father Saduledh Khan and the deceased, and removed them to the police station of 24th June, 1974, at 2.50 pm. The Station house Officer registered a criminal Case on the basis of the report of Yusuf Khan under Sections 148, 307, 326, 323 read with Section 149, I.P.C. and took up the usual investigation into the matter. He got the statement of Saduleh Khan, deceased, recorded by Nagar mal, Section 1 which is Ex. P. 28 on the record and which bears the thumb impression of Saduleh khan. Thereafter, he sent Saduleh Khan deceased and the other injured persons to S.M.J. Hospital, Ratangarh, for medical examination as to their injuries. Dr. Prem Prakash Gupta, Deputy Chief Medical Officer, Ratangarh, examined Saduleh khan, deceased, on 24th June, 1974 and found the following three injuries on his body:

(3.) DHANPAT Singh, Station House Officer, Ratangarh, inspected the site and prepared a site -plan and a site -inspection memo. He took the blood stained clothes of the deceased and the other injured persons into his possession and sealed them properly in the presence of Motbirs. He arrested the appellants and recovered lathis from the possession of some of them at their instance and in consequence of their information's recorded under Section 27 of the Evidence Act. After collecting other necessary evidence, the Station House Officer submitted a charge -sheet against all the appellants and Niyamat Khan S/o Labdhi Khan and Gulam Kadar and others in the court of the Chief Judicial Magistrate, Churu, under Section 302, 307, 324, 323 and 148, read with Section 149, I.P.G. As Niyamat Khan son of Ahmed Khan was serving in the Army, the Station House Officer could not procure his attendance at the time when the challan was filed by him against the appellants and others. Later on, when Niyamat Khan son of Ahmed Khan was arrested, a charge -sheet was submitted against him in the court of the Chief judicial Magistrate, Churn, under Sections 302, 307, 148 and 324 read with Section 194, I.P.C. The learned Magistrate perused the papers submitted along with the challan and upon finding a prima -facie case exclusively triable by the court of the Sessions Judge, committed all the appellants, Niyamat Khan son of Labdhi Khan and Gulam Kadar and others to the court of the Additional Sessions Judge, Churn, for trial for the aforesaid offences'. The Additional Sessions Judge Churu, tried them and while acquitting Gulam Kadat, Murad Khan, Mori Khan, Usman Khan and Mazid Khan accused, convicted and sentenced the appellants in the manner indicated above