Yaseen Khan and Others vs State of U.P.

G.K. Mathur, J.—Yaseen Khan, Rasool Khan, Tasawwar Khan, Naseem Khan, Usman alias Nannha Khan, Latif Khan, Jatneel 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. Mital, I Addl. District and Sessions Judge, Bareilly, in Sessions Trial No. 230 of 1977 convicting Yaseen Khan, Rasool Khan and Tasawwar Khan for the offence punishable under Sections 326 read with Section 149, 148 and 323/149 IPC 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 convicting the remaining ten Appellants for the offence punishable under Sections 326/149, 147 and 323/149 IPC 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.

Government Appeal No. 44 of 1978 has been preferred by the State against the acquittal of Yasetn Khan, Bundan Khan, Hussain Khan, Rasool Khan, Tasawwar Khan, Hamid Khan, Naseem Khan, Usman Khan, Latif Khan, Jameel Khan, Sharief Khan, Ismail Khan, Shabbir Khan, Banney Khan, Mangal Khan and Yaqoob Khan for the offence punishable under Sections 302 and 452/149, IPC by the same I Additional District and Sessions Judge in the same Sessions Trial. As these two appeals arise out of the same judgment, they are being disposed of by means 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 PW 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 Khan 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 Usman Khan alongwith ten other accused persons armed with lathis were seen coming towards Akbar Khan. Akbar Khan thereupon slipped into his house. In the meantime they arrived there and asked Nanhey Khan and Hameed Khan as to where Akbar Khan 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 Hameed Khan took exception to the arrival of so many persons 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 Yasin Khan then commanded that the supporters 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 lathis in the court-yard of their house. It is alleged that the Appellants caused injuries to Naseer Khan PW 1, Akhtar Khan, Mehtab 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 instantaneously while Hameed Khan succumbed to his injuries about half an hour after the assailants left the spot.

Naseer Khan came to the police station Hafizganj 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 Sections 147, 148, 149, 302 and 452 IPC by Head Constable Bhagwan Swarup Pathak PW 4. Sri J.S. Teliyan, S.I. PW 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 blood-stained 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 PW 6 examined the injuries of Ashfaq Khan, Naseer Khan, Hawaldar Khan, Mehtab Khan and Akbar Khan. Dr. D.P. Singh PW 8 conducted the post-mortem examinations of the dead bodies of Nanhey Khan and Hameed Khan. Udai Vir Singh PW 7 the then Station Officer of P.S. Hafizganj, completed the investigation and submitted a chargesheet against the Appellants and others.

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 instead of holding the accused persons guilty of the offences punishable under Sections 302 read with Section 149 and 307 read with Section 149, IPC 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 punishable under Sections 302/149 and 452 IPC and gave the benefit of doubt to Bundan Khan, Hussain Khan and Hamid Khan and acquitted them of all the charges levelled 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.

The finding of the trial court that, Akbar Khan had a scuffle with Sharif Khan on the question of going through his newly repaired Mend has not been challenged by the Learned Counsel for the Appellants. His argument has been that there had been no enmity of accused with the deceased Nanhey Khan and his brother Hamead Khan, and the Appellants had no motive to kill them. He urged that those who actually committed the murder and assaulted the injured persons need be punished. He referred to the injuries of Nanhey Khan and Hameed Khan as mentioned in the post-mortem reports. Nanhey Khan besides two punctured wounds had also received one abrasion 1,5 cm x 1.5 cm on the left knee, whereas Hameed Khan received one lacerated wound 2.5 cm x 1 cm x scalp deep on the midline of forehead besides three punctured wounds. The contention of the Learned Counsel for the Appellants was that according to the case of the prosecution, ten persons amongst the assailants were armed with lathis and still no injury was caused to Nanhey Khan by lathi and that only one injury was caused to Hameed Khan by lathi.

From the evidence of Akbar Khan PW 2 and Naseer Khan PW 1 it is clear that Sharif Khan after the scuffle with Akbar Khan ran away giving a threat to teach him a lesson and came back within 15 minutes along with other accused persons armed with spears and lathis. They thus constituted an unlawful assembly within the meaning of Section 141, IPC. The common object of the said unlawful assembly was to take revenge from Akbar Khan by use of criminal force and violence. As Akbar Khan had slipped into his house, the accused persons had a confrontation with Nanhey Khan and Hameed Khan and apprehending them as the supporters of Akbar Khan Yasin Khan Appellant commanded to deal with them first upon which Nanhey Khan and Hatnid Khan ran desperately for safety and entered into the courtyard of their house, but all the accused persons belaboured them there. Not only this, the villagers who came for their rescue were attacked by lathis causing injuries to Naseer Khan, Akhtar Khan, Havaldar Khan, Mehtab Khan and Ashfaq Khan. It is thus clear that the offence has been committed in prosecution of common object of the unlawful assembly and by virtue of the provisions of Section 149, IPC every member of the assembly was guilty of the same offence. The argument of the Learned Counsel for the Appellants is thus against facts and law and cannot be accepted.

Learned Counsel for the Appellants next argued that it may be a case of free fight. He urged that though the party of the accused persons had come to resort to criminal force and violence, it could have developed at the spur of the moment at the spot into a case of free fight. He, therefore, submitted that the persons who actually participated in the crime shall be held guilty. Nanhey Khan and Hameed Khan on being confronted with the accused persons and on hearing the exhortation of wrath directed towards them ran for safety but the assailants chased them and pierced the spears into their bodies and also gave lathi blows and warded oil� the persons who came to their rescue by wielding lathis and causing injuries to five of them. It is true that it is mentioned in the first information report and has also come in evidence that Naseer Khan and others who had come to the rescue had wielded lathis and some injuries might have been caused to the assailants also. However, the accused persons have no where pleaded that they indulged in any free fight and received injuries at the hands of Naseer Khan etc. On the other hand, the suggestion given in cross-examination of the prosecution witnesses was that Naseer Khan and his brother fought amongst themselves. The accused persons, however, in their statements recorded u/s 313, Code of Criminal Procedure nowhere stated about it too. The trial court has ruled out this possibility of fight amongst brothers suggested in cross-examination by valid reasons. There is nothing on the record even to suggest that there was free fight and the argument is nothing but an ingunity of the Learned Counsel and is, therefore, overruled.

Learned Counsel for the Appellants argued that the evidence of the prosecution is not very reliable and that the trial court has already acquitted three of the accused persons. The trial court has given the benefit of doubt to three accused persons because Havaldar Khan PW 3 in his cross-examination admitted that he could correctly recognise accused Yasin Khan, Tasawwar Khan and Rasool Khan only amongst those who were armed with spears and could not recognise the remaining assailants viz. Bundan Khan, Hasin Khan and Hamid Khan. The trial court in para 25 of its judgment has mentioned that as a matter of extreme precaution the benefit of doubt was extended to the three accused persons and not that the evidence of Naseer Khan PW 1 had been disbelieved on this point.

We have carefully examined the entire evidence and we do not agree with the contention of the Learned Counsel for the Appellants that the prosecution evidence is not reliable. It is quite reliable and inspires full confidence. The benefit of doubt has been given to the three persons on the basis of the statement of Havaldar Khan as mentioned above.

Learned Counsel for the State urged that the acquittal of those three persons, namely, Bundan Khan, Hasin Khan and Hamid Khan merely on the basis of the statement of PW 3 Havaldar Khan, was not justified and hence the same has been challenged in the Government Appeal. We have given our serious thoughts to this aspect and are of the view that by giving benefit of doubt as a matter of extreme precaution, the trial court has not acted perversely. The statement of Havaldar Khan, as mentioned above, justified the acquittal of these three persons.

Learned Counsel for the State urged that the trial court fell in error in convicting the Appellants for the offence punishable u/s 326 read with Section 149, IPC and not for the offence punishable u/s 302/149, IPC. We do not find any force in this contention of the Learned Counsel for the Appellants, looking to the circumstances and facts of the case. There was no enmity between the accused persons and the two deceased. They became the victims of the wrath of the accused persons as they came face to face with them. The trial court appears to be right in holding that the common object of the unlawful assembly might not be to commit murder but the members of the assembly knew that at least grievous hurt with sharp pointed weapons was likely to be caused by any of the members of the assembly in prosecution of the common object. Conviction of the Appellants has, therefore, rightly been ordered by the trial court u/s 326/149 IPC instead of 302, IPC.

Learned Counsel for the State next submitted that acquittal of accused persons for the offence u/s 452 was erroneous. Amongst the deceased Nanhey Khan died instantaneously at the spot. His dead body was found lying at point �A� as shown in the site plan. It is an outer open space of the court-yard. The place of incident, therefore, was not inside the building within the meaning of �house trespass� as defined in Section 442, IPC.

To sum up, we not find any force in any of the contentions raised by the Learned Counsel for the Appellants or the Learned Counsel for the State. Both the appeals have no force and are liable to be dismissed.

The appeals are dismissed. The Appellants, who are on bail, shall be taken into custody forthwith.