Babu Khan and Ors. vs State of U.P.

Palok Basu, J.—This is an appeal by Babu Khan, Mohd. Bux, Mohd. Umar, Imam Bux, Pir Bux and Rustam against their conviction under Sections 147 and 323, I. P. C. read with Section 148, I.P.C. and the sentence of one year''s R.I each on the two courts respectively directing the sentence to run concurrently and in addition a fine of Rs. 100 under Section 323, I. P. C. as passed by the First Additional Sessions Judge, Rampur, on 161979.

The prosecution case is that one Races received injury in an incident which happened on "91977. It is said that me Nanua and his brothers Raees, Abrat and father Shahabuddin had gone to the mosque for Friday prayer. Deceased Bhoora had also gone there. Nanne complained to Bhoora that the latters son had assaulted the former''s brother Races. After offering prayer (Namaz) when Nanua and others came out of the mosque and proceeded towards the Chaupal in front of the house of Bhoora all the appellants along with Bhoora and Buddha accused, who died during the pendency of the case, came there. Mohd. Bux was armed with spear and others were having lathis. They started assaulting all the three brothers Nanua, Races and Abrar and their father Shahabuddin. During the course of the marpit Bhoora caught hold of Abrar by the waist and Mohd. Bux aimed his spear on Abrar but the spear instead of bitting Abrar struck Bhoora. After receiving injury, Bhoora ran towards the mosque perused by Mohd. Bux Nanua who got a lathi which he weilded in selfdefence. All the three brothers and father received injury in the incident. However, Bhoora fell as result of spear injury. All the four injured went to police station around 4.10 p.m. and while they were there Mohd. Bux also reached there at 5.00 p.m. The four injured were put into lockup. Nanus was made to make a report by getting his thumb impression on a paper which was read out to him. Nanua, Shahabuddin and Abrar were sent to Suar Hospital for medical examination. Shahabuddin was examined at 9 p.m. and had 7 injures all contusions and lacerated wounds. Nanua was examined at 9.30 p.m. and had 13 injures all contusions and lacerated wounds. Abrar Hussain was medicallv examined 1.10p.m. and had one lacerated wound and two contusions. Races was medically examined on 1091977 and was found to have 10 injuriesall contusions and abrasions. According to the statement of the Investigating Officer P. W. 8 Chandrapal Pathak he had recorded the statement of Alia Bux, Ali Hussain, Rustam, Nanua and Races on 1091977 and prepared the F. I. R. (Ex. Ka4) lodged by Nanua at P. S. Suar at 10.30 p.m.

The appellants pleaded not guilty to the charges framed against the appellant Babu Khan, Mohd. Bux and Imam Bux admitted participation in the incident but stated that it was Bhoora, deceased, who complained to Shahabuddin about Races assaulting Rustam and they also denied the place of occurrence and said that Abrar, Shahabuddin, Races and Nenus started attacking with spear and lat his at Bhoora. Nanua, Imam Bux and Mohd. Bux and Abrar were armed with spear and the lathis were plied by them in selfdefence.

The trial Judge has noted the injures of Bhoora deceased and also that, of Mohd. Bux and concluded that there was admittedly a marpit in which Shahabuddin, Nanua, Abrar and Races received injures on the side of the complainant while Bhoora and Mohd. Bux received injures on the side of the accusedappellants and Bhoora had died. The further finding recorded by the trial Judge is that the eyewitness P. W. 3 Nanua and P. W. 4 Races have given consistent evidence of participation of the appellants. The conclusion of the trial Judge, therefore, is that the marpit had taken place and the applicants had committed an offence of rioting under Sections 147 and 323/149, I. P. C. and sentenced them as noted above.

Sri J. S. Tomar, learned counsel for the appellants has been heard at length and Sri Surendra Singh, learned A. G. A. has been heard in opposition and the entire record of the lower Court has been perused. The proper book was not available and, therefore, the learned counsel have placed the entire record of the trial Court including the eyewitness.

It cannot be said that the prosecution has not been able to make out an offence of rioting and the offence of causing simple injuries by the appellants as well as farming unlawful assembly on the accused side. Therefore, there is no error in the order of the trial Judge in recording the conviction.

Coming to the question of sentence Sri J. S. Tomar has argued that while during the trial the appellants have been in jail for nearly three weeks and have also been in jail for another weeks after their appeal was dismissed in default by the Court and they were taken into custody. It was seriously emphasised that the incident is of the year 1977 and nearly 15 years have elapsed since the incident and no useful purpose will be served if the applicants are again sent to jail or are asked to serve out any more sentence than already undergone by them, Sri Surendra Singh, learned A. G. A. has, of course, said that the question of sentence is being left to the Court''s discretion.

From the aforesaid discussion it is more than clear that one of the persons on the appellant''s side has died and that Mohd. Bux received injures. Looking at the other injures sustained on the prosecution side it may be stated here that all the injuries were simple and there was no premeditation for the assault and consequently looking at the long interval having intervened between the date of the incident and this day it appears desirable to reduce the sentence of the appellants to the period already undergone.

Consequently this appeal is allowed. The conviction of the appellants is maintained but their sentences are reduced to the period already undergone. The sentence of fine imposed by the trial Court is set aside.

The order of this Court dated 28111990 is recalled and shall be taken to have been obliterated. If the appellants are in jail they shall be released forthwith. Fine if paid shall be refunded.