Full Judgment
S.N. Pathak, J.
1. This appeal has been preferred by the three above named appellants, out of whom appellant Nasiruddin Khan was convicted under Section 304, Part-II and the rest of the appellants were convicted under Section 323, I.P.C. Appellant Nasiruddin Khan was sentenced to undergo R.I. for five years and the rest of the appellants were sentenced to undergo R.I. for one year for offence under Section 323, I.P.C.
2. The case of the prosecution, as per the fardbeyan of Murtaza Khan (Ext. 3), was that on 6.10.81 at about 11.30 the informant was fixing page on his own Sahan land to keep maize crops Suddenly, Nasiruddin Khan, Lajim Khan and Mehmood Khan came there and protested to the Act of fixing of the pole. The informant replied that he was fixing the pegs on his own sahan and, therefore, there was no question of protest. He also asked to accused to get the land measured to ascertain whether the peg was being fixed on the land of the latter or on his own land. Subsequently Nasiruddin Khan, Lajim Khan and Mehmood Khan announced that the informant will not heed to reason and, therefore, he should be assaulted. Thereafter, Majiruddin Khan brought a bhala and Qayamuddin Khan and Sadruddin Khan brought lathi, Majiruddin Khan handed over the bhala to Nasiruddin Khan and went back home to bring another bhala. Lajim Khan also brought a lathi from his home. Thereafter, informant's brothers Salam Khan, Farman Khan and Kalam Khan all sons of Munshi Khan appeared there and asked the accused-persons not to indulge in assault. In the meantime, informant's brother Kalam Khan was subjected to assault with bhala by Nasiruddin Khan hitting him on the right temporal region. Subsequently, Nasiruddin Khan stood there with bhala in his hand and Sadruddin Khan, Qayamuddin Khan and Lajim Khan assaulted Kalam Khan, Salam Khan and Farman Khan as also Munshi Khan. When the villagers gathered, the accused-persons made good their escape. The injured Kalam was brought to the hospital, where the informant gave his fardbeyan.
3. The accused-appellants had their defence through their own report to the police (Ext-'A1) to the effect that on 6.10.81 itself Murtaja Khan, the Informant of this case, was fixing a plea on his (accused) Sahan land, whereupon a protest was lodged. However, the informant Murtaja Khan failed to heed to the protest and his other relations came there and indulged in assault upon Nasiruddin Khan. He was also subjected to assault by Salam Khan and Munshi Khan by lathi. Kalam Khan had assaulted Nasiruddin Khan with bhala.
4. Learned lower Court, oh the basis of evidence of nine witnesses; found the accused-appellants guilty and sentenced them, as stated above. Learned trial Court also held that charge under Sections 147 & 148, I.P.C. was not proved and, therefore, the acquitted them therefore. Charge under Section 302, I.P.C. was also not found established and hence accused Nasiruddin Khan was convicted and sentenced under Section 304, Part II, I.P.C.
5. The evidence of the prosecution was criticised before me on the grounds, inter alia, that the prosecution had failed to explain the injury on Nasiruddin Khan and that the prosecution party of this case was aggressor, it was also submitted that no independent witness was examined, although there was admission of P.Ws. that several villagers had gathered.
6. I find that P.W. 1 Maula Khan was declared hostile because he failed to support the prosecution case. P.W. 2 P.W. 3, P.W. 4 and P.W. 6 were all the eye-witnesses arid they were all inter-related. P.W. 5 was tendered. P.W. 7 was the I.O. P.W. 8 was the doctor, who held autopsy on the dead body of Kalam Khan. P.W. 9 was the doctor who treated Kalara Khan in the hospital at Siwan.
7. From the case, as narrated in the report of accused Nasiruddin (Ext. 'A'), it is apparent that there was some sort of occurrence over fixing of khuta at his sahan, alleged by the prosecution as belonging to the informant of the case and alleged by the defence to be the sahan of accused Nasiruddin Khan. It is further apparent that accused Nasiruddin had protested to the Act of fixing of the peg to which the informant Murtaza did not pay any heed, so it was the accused who had a grievance for this fixing of peg and, therefore, he would be supposed to begin the assault. In such a circumstance, accused-persons would be the aggressor and not the prosecution party. The presence of the relation of the informant at the P.O. is quite natural because the houses of the accused and the informant both are continuous and sahan land is adjacent to their house. The fact that the accused-persons were the aggressor is further strengthened by the fact that one member of the informant's side Kalam Khan received injury, which finally resulted in his death, whereas accused-appellant Nasiruddin Khan received all simple injuries. The injury upon Nasiruddin (Ext-'8') is further to be viewed with suspicion, because it was alleged that Nasiruddin had sustained bhala injury, whereas the injury found on him by the doctor (Ext. 'B') are all caused by hard blunt substance and all were simple. So far as the evidence with respect to the assault in particular is concerned, there was no material discrepancy in the evidence of the P.Ws., though they were all inter-related. Simply because no independent witness has been examined, their evidence cannot be discarded on this ground alone, specially in view of the fact that the occurrence of the kind gets admitted from the cases of both parties. They have simply differed in their discription of the alleged occurrence in their own way.
8. So far the conviction of Nasiruddin Khan under Section 304, Part II, I.P.C. is concerned, I think it was proper because the occurrence and the alleged assault took place on a sudden flare-up and without any premeditation or preparation. Other accused-appellants had also indulged 'in' assault upon the family members of the informant, for which they have been convicted under Section 323, I.P.C.
9. So far, the sentence is concerned, it was submitted before me that the period undergone by the accused-appellants, during trial or after conviction, may be converted into their period of sentence. In this connection, I am of the opinion that only a few months were served by the appellants during the trial and after conviction. The trial Judge was almost lenient in awarding only five years, R.I. to Nasiruddin Khan and one year R.I. to rest of the appellants. The ground for converting the period suffered by the appellants during trial and, thereafter, was that they have suffered a lot of harassment during the pendency of the appeal before this Court and during trial. But the trauma and permanent loss which occurred to the informant's party has also to be taken in mind before showing any leniency to the accused-appellants. Principle behind sentence is that condign punishment should be awarded and any kind of personal leniency is not to be contemplated in the legal procedure. Hence, I do not think there is any necessity to interfere with the sentence awarded to the accused-appellants.
10. In the result, this appeal is dismissed and the order of conviction and sentence is affirmed.