UMED HUSSAIN Vs. EMPEROR

JUDGEMENT

(1.) THIS appeal has been filed on behalf of Umed Hussein who with his three sons Amir Ali, Jawahir Ali alias Bulaki and Wazir Ali, and six others, Santokh, Lalkhan, Bilam, Annoop, Ghasi, Latti, has been convicted under Section 148 and Section 302 read with Section 149, I.P.C. and has been sentenced to rigorous imprisonment for two years, and to transportation for life respectively, the sentences to run concurrently. The other nine accused have been similarly convicted and their appeals in this Court are appeals Nos. 118 to 126 of 1928. The judgment in this appeal will govern the other appeals also.

(2.) THE facts of this case have been mentioned in sufficient detail in the judgment of the learned Sessions Judge and therefore I do not consider it necessary to repeat them here. It is an admitted fact that a marpit took place in the village Sarwani on 7th December 1927 when the possession of the share belonging to Umed Hussain was to be delivered to the decree-holder. The prosecution case is that all the appellants armed with lathis came to the place, in front of the house of Thandaram, and assaulted Thandaram, Bandaram and Raghunandan Prasad. The accused Umed Hussain and Jawahir Ali allege that Thandaram and Bandaram accompanied with 10 or 15 persons came to their house, and after some altercation", Thandaram gave a blow to Umed Hussain and ordered his men to beat, that they took the sticks of Bandaram and Sheo Prasad and defended themselves, that many persons who had gone there hearing about the marpit intervened, and as there was a big crowed in the angan, in the Melee, Bandaram's head came into contact with the door-frame and got hurt.

(3.) A careful perusal of the evidence of the prosecution witnesses Mahabir Prasad (P.W. 11), Raghunandan Prasad (P.W. 12) and Thandaram (P.W. 13) makes it clear that besides the two mazkuris,:at least 10 or 12 other persons had accompanied the process-server Raghunandan Prasad when he went to Sarwani on 7th December 1927, and about 20 or '25 men of Mohwadeh" were being taken out of that village by Mahadeo (P.W. 18) to go to Sarwani to help the process server in handing over possession to the decree-holder. Mahadeo has stated that when Eaghunandan Prasad asked him to arrange for men to go with him, he sent for his mukhtiar Thandaram and called the tenants of Lakhourri and Mohwadeh to be ready to go for taking possession of Sarwani and Parsapailli. According to Mahabir Prasad (P.W. 11) some of the men who had accompanied him, had sticks. It is thus clear that the mazkuris were accompanied by at least a dozen persons, some of whom had lathis, when they went to the village Sarwani, to deliver possession. Regarding the place of marpit, both the parties have mentioned two different places, the lane in front of Thandaram's house and the angan of Umed Hussain, as the places where the marpit took place. (The judgment here discussed evidence and concluded that the marpit took place near the house of Thandaram and not at the house of Umed Hussain. It then proceeded.) The nature of the injuries found on the persons of the members of the two parties will give some idea of the marpit as it took place. The prosecution witnesses do not explain as to how the following persons had injuries on their persons.