- (1.) G. K. Mathur, J. Yaseen Khan, Rasool Khan, Tasawwar Khan, Naseetn Khan, Usman alias Nannha Khan, Latif Khan, Jameel Khan, Sharif Khan, Ismail Khan, Shabbir Khan, Banney Khan, Mangal Khan and Yaqoob Khan have filed Criminal Appeal No. 2161 of 1977 against the judgment and order dated 23rd of September, 1977 passed by Shri H. C. Mail, 1st Addl. District and Sessions Judge, Bareiily, in Session Trial No. 230 of 1977 convict ing Yaseen Khan, Rasool Khan and Tasawwar Khan for the or tone punish able under Sections 326 read with Sections 149, 148 and 323/14=), I. P. C. and sentencing each of them to undergo rigorous imprisonment for a period of ten years two years and six months for each count respectively and further convict ing the remaining ten appellants for the offence punishable under Sections 326/149, 147 and 323/149 I, P. C. and sentencing each of them to undergo rigorous imprisonment for a period of five years, one year and six months for each count respectively. The sentences were ordered to run concurrently.
(2.) GOVERNMENT Appeal No. 44 of 1978 has been preferred by the State against the acquittal of Yaseen Khan, Bundan Khan, Hussain Khan, Rasool Khan, Tasawwar Khan, Hamid Khan, Naseem Khan, Usman Khan, Latif Khan, Sharif Khan, Ismail Khan, Shabbir Khan, Banney Khan, Mangal Khan Jameel Khan and Yaqoob Khan for the offence punishable under Sections 302 and 452/149, I. P. C, by the same I Additional District and Sessions Judge in the same Session Trial. As these two appeals arise out of the same judgment, they are being disposed of a common judgment. The case of the prosecution in brief has been that on 28th September, 1976 at 3 p. m. appellant Sharif Khan was passing, through the Mend of the field of Akbar Khan (P. W. 2 ). Akbar Khan objected to it as it was a freshly repaired mend and was wet, but Sharif Khan persisted on going through the same with a challenge with the result that the two had a scuffle. Sharif Khan then went away towards his house giving a threat to teach Akbar Khaa a lesson. It is alleged that Nanhey Khan and Hameed Khan on hearing the noise had reached there and enquired from Akbar Khan as to what was the matter. While Akbar Khan was narrating the story, Yasin Khan, Bundan Khan, Husain Khan, Hamid Khan, Rasool Khan, and Tasawwar Khan armed with spears and Usmau Khan alongwith ten other accused persons armed with lathis were seen coming towards Akbar Khan. Akbar Khan there upon slipped into his house. In the meantime they arrived there and asked Nanhey Khan and Hameed Khan as to where Akbar Khau had gone and said that they would see how he would not allow them to pass through the Mend of his field. It is alleged that Nanhey Khan and Hamid Khan took exception to the arrival of so many person armed with weapons as against one and said that it would not be good if they did any harm to Akbar Khan. It is alleged that Yaseen Khan then commanded that the supports be dealt with first and that they would see Akbar Khan later on. Nanhey Khan and Hameed Khan, according to the case of the prosecution, then ran from there to save themselves and entered into their house, but the appellants chased them and attacked them with spears and laihis in the court-yard of their house. It is alleged that the appellants caused injuries to Naseer Khan (P. W. 1) Akhtar Khan, Meutab Khan and Havaldar Khan when they along with others came to the rescue of Nanhey Khan and Hameed Khan. While the assailants were retreating, they also caused lathi injuries to Ashfaq Khan. Naseer Khan and others claimed to have used lathis in self-defence. Nanhey Khan died at the spot instan taneously while Hameed Khan succumbed' to his injuries about half an hour after the assailants left the spot. Naseer Khan came to the police station Hafizgang and lodged first information report at 5. 30 p. m. on 28-7-1976 and the case was registered against all the sixteen accused persons for the offences punishable under Sec tions 147, 148, 149, 302 and 452 I. P. C. by Head Constable Bhagwan Sawarup Pathak (P. W. 4) Sri J. S. Teliyan, S. I (P. W. 5) started investigation of the case and after reaching the spot made the inquest of the dead bodies and sent them for post-mortem examination. He also prepared a site plan of the field of Akbar Khan and of the house of Nanhey Khan and Hameed Khan, deceased. A blood-stained spear from the house of Rasool Khan and a bloodstained lathi from the house of Shabbir Khan were recovered by Sri J, S. Teliyan in presence of villagers and prosecution witnesses. Dr. R, S. Chaudhary (P. W. 6) examined the injuries of Ashfaq Khan, Naseer Khan, Hawaldar Khan, Mehtab Khan and Akbar Khan. Dr. D. P. Singh (P. W. 8) conducted the post-mortem examinations of the dead bodies of Nanhey Khan and Hameed Khan. Udai Vir Singh (?. W. 7), the then Station Officer of P. S. Hafizganj completed the investigation and submitted a charge sheet against the appellants.
(3.) THE accused persons pleaded not guilty and specifically denied the allegations made against them. THEy stated that the witnesses deposed against them out of enmity. THEy, however, did not examine any witness in their defence. The trial court accepted the prosecution version in toto but ins ted of holding the accused persons guilty of the offences punishable under Section 302 read with Section 149 and 307 read with Section 149, I. P. C. convicted and sentenced them only as mentioned in the opening part of this judgment. The trial court did not hold the accused persons guilty of the offence punish able under Sections 302/149 and 452 I. P. C. and gave the benefit of doubt to Bundan Khan, Hussain Khan and Hamid Khan and acquitted Fame of all the charges leveled against them. Feeling aggrieved by the judgment and order of the trial court, the State has preferred the aforesaid Government Appeal against all the sixteen accused persons while Yasin Khan and twelve others have preferred the present Criminal Appeal.;