JUDGMENT

Agarwalla, J. - Six persons, lddu Khan, Chhunnu Khan, Mallu Khan, Faiyaz Khan, Mindu Khan and Yasin Khan were prosecuted for offences under Sections 147 : 304 : 323 and 149, Penal Code and Section 24, Cattle Trespass Act for forming an unlawful assembly with the common object of rescuing their cattle from Paqir Mohammad and Ammi Khan; and for committing a riot and for causing simple hurt to Ammi Khan and the death of Faqir Mohammad. They have been convicted and sentenced to various terms of imprisonment. They have come up in appeal to this Court.

2. The prosecution case was that on 3rd July 1946, at about 4 p.m. the cattle of the accused Faiyaz Khan, Mallu Khan and Yasin Khan trespassed into the sugarcane field of Ammi Khan and his father Faqir Mohammad deceased, Faqir Mohammad and Ammi Khan were at that time engaged in sowing paddy in another field at a distance of about 100 paces-from their sugarcane field. When they found that cattle were grazing in their field, they drove away the cattle and were taking them to the cattle pound in the neighbouring village Kundra. When they had proceeded a little, the six accused came armed with lathis and demanded the release of the cattle by show of force, Ammi Khan and Faqir Mohammad refused to comply with the demand; whereupon Mallu Khan and lddu Khan gave lathi blows on the head of Faqir Mohammad as a result of which his skull was fractured and he died, and the other four persons, namely, Chhunnu Khan, Mindu Khan, Yashin Khan and Faiyaz Khan gave lathi blows to Ammi Khan. Ammi Khan received simple injuries. None of the accused admitted his presence at the time of the occurrence and they all pleaded alibi.

3. The prosecution produced four witnesses, These were Ammi Khan, who was himself injured, Dildar Khan, Fateh Sher Khan and Pidda Husain. Abdullah Khan, the witness mentioned in the first information report, was not examined by the prosecution but was examined by the Court u/s 540, Criminal P. C. The evidence of the prosecution witnesses establishes that Idda Khan and Mallu Khan struck Faqir Mohammad on the head and that Chhunnu Khan, Mindu Khan and Yasin Khan struck Ammi Khan with lathiB. Some prosecution witnesses name Faiyaz Khan also a one of the assailants of Ammi Khan. The medical report is that Faqir Mohammad received two injuries on the head and that Ammi Khan received three injuries on his body. These were all simple. Faqir Mohammad's injuries on the head were very near each other. The learned Counsel appearing for the accused has argued that it is improbable that they should have been caused by two persons, I do not, however, see any improbability in this in the face of the positive evidence that lddu Khan and Mallu Khan struck Faqir Mohammad on the head. I do not think the mere fact that the injuries were very close to each other would enable me to hold that lddu Khan and Mallu Khan were not. telling the truth.

4. The learned Counsel next argues that sin3e Ammi Khan had only three injuries on his person it could not be true that four persona struck him with lathis. In the case of Faiyaz. Khan accused, Abdullah Khan, the court witness,, clearly stated that he did not see Faiyaz Khan at the scene of occurrence at all, and Fida Husain, prosecution witness, stated that he did not see Faiyaz Khan giving any blow. I think there is room for reasonable doubt about the presence of Faiyaz Khan at the time of marpit. I, therefore, give him the benefit of doubt and hold that he is not guilty of any offence.

5. Having come to that conclusion, the evidence of the prosecution witnesses that Chhunnu Khan, Mindu Khan and Yasin Khan struck Ammi Khan with lathis becomes probable. Nothing has been shown to me to throw doubt on their testimony. It has been argued that Abdullah Khan, the court witness, has admitted that 15 days prior to the date of incident he lodged a report u/s 107, Criminal P. C, against Chhunnu Khan and in that report he had cited Dildar Khan and Fateh Sher Khan as his w