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Sabir HusaIn and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All261; 63Ind.Cas.157
AppellantSabir HusaIn and ors.
RespondentEmperor
Excerpt:
.....the fight either because of their own admission or because they had injuries on their persons, and, therefore, it was safe to conclude that they at any rate took part in the flight. the learned sessions judge in the case of the four men held that on the finding it was unsafe to say that more than these four persons took part, and that the conviction under section 147 was illegal. the learned judge seems to think that this is unnecessary because in the case of the four men, he says, the presumption is strong and it should be taken as established that every one of the appellants caused hurt to the members of the opposite party......they at any rate took part in the flight. he convicted them all under section 147 of the indian penal code and pasted the maximum sentence allowed by law. both parties appealed. the learned sessions judge in the case of the four men held that on the finding it was unsafe to say that more than these four persons took part, and that the conviction under section 147 was illegal. he, therefore, altered the conviction to one under section 323 of the indian penal code and reduced the sentence of three of them, namely, sabir husain, babu lal and masuria din, to six months rigorous imprisonment and of nazir husain to a fine of rs. 150. in the other case he held that although there were five persons present it was impossible to say that they acted with any common intention and, therefore, the.....
Judgment:

Ryves, J.

1. These two revisions arise out of a fight which took plane between two factions. Both sides were tried by Mr. Bain. He same to the conclusion that the evidence on both sides was perjured up to the hilt, so much so that be was not prepared to find that of the six persons sent up for trial on one side more than four were present, and on the other side he found he could hold five men guilty but no more. He came to the conclusion that these cine men were engaged in the fight either because of their own admission or because they had injuries on their persons, and, therefore, it was safe to conclude that they at any rate took part in the flight. He convicted them all under Section 147 of the Indian Penal Code and pasted the maximum sentence allowed by law. Both parties appealed. The learned Sessions Judge in the case of the four men held that on the finding it was unsafe to say that more than these four persons took part, and that the conviction under Section 147 was illegal. He, therefore, altered the conviction to one under Section 323 of the Indian Penal Code and reduced the sentence of three of them, namely, Sabir Husain, Babu Lal and Masuria Din, to six months rigorous imprisonment and of Nazir Husain to a fine of Rs. 150. In the other case he held that although there were five persons present it was impossible to say that they acted with any common intention and, therefore, the conviction under Section 147 of the Indian Penal Code was not warranted. He also convicted them under Section 323 of the Indian f Penal Code and sentenced them to six months' rigorous imprisonment. Both parties have come up here in revision. It is urged that the conviction under Section 323 is not warranted because it is not found who beat whom. The learned Judge seems to think that this is unnecessary because in the case of the four men, he says, 'the presumption is strong and it should be taken as established that every one of the appellants caused hurt to the members of the opposite party.' Having regard to the finding in the ease of the five men, namely, that it was impossible to say that they acted with a common intention, it seems to me impossible to hold, merely on the strength of a so-called presumption, that Section 34 of the Indian Penal Code would be applicable in either case, I think if I had been trying the appeal, I should have been able to find on the evidence that the five men certainly were guilty of riot, but the learned Judge has some to the opposite conclusion. It seems to me impossible to uphold the conviction even under Section 323 of the Indian Penal Code, if it is established on this finding that there was no common intention. On the other hand, it is quite clear that both parties committed an offense under Section 160 of the Indian Penal Code. Having regard to the bitter enmity between the parties I propose to give the maximum sentence allowed by law. I, therefore, alter the conviction in both eases to one under Section 160 of the Indian Penal Code. I sentence all except Nazir Husain to rigorous imprisonment for one month. Nazir Husain's fine of Rs. 150 is illegal. I reduce it to Rs. 100. The balance will be refunded. If parties will some into Court with absolutely perjured evidence, it is their own fault if people who ought to have been convicted are not. If any of these persons has not served out the sentence of one month he must surrender to his bail, otherwise all who have served the term of one month's rigorous imprisonment need not surrender, The order under Section 106 of the Code of Criminal Procedure in both cases will stand.


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