Case: Munir Khan Vs. State of Uttar Pradesh

2. The incident giving rise to this prosecution took place on May 7, 1964 at about 10 p. m. The complainant as well as the appellant were having cycle stands near the exhibition ground, Rampur. The appellant and another had taken a cycle stand on contract from the municipal council. They were permitted to charge for each cycle 12 N. P. whereas the complainant was having a private cycle stand. It is said that he was charging only 5 N. P. per cycle. As a result of this, the prosecution case is that there was a trade rivalry between the appellant and his men on the one side and the complainant and his men on the other. It was further stated that on the date of the occurrence the appellant and several others went and attacked the complainants party as a result of which several persons sustained injuries and one Anwarul Hasan died.      3. The defence admitted that there was trade rivalry between the appellants party and the complainants party. Their case was that it was the complainants party who came suddenly and attacked the appellants party as a result of which there was marpit in which both sides sustained injuries. The appellants party pleaded. The trial Court after carefully examining the evidence came to the following conclusions:      (1) that the marpit was not preplanned. It developed suddenly as a result of some abuses given by P.W. 1.      (2) that the marpit took place near the second gate of the accused and not in front of the cycle stand of the complainant.      4. In effect the learned trial judge accepted the defence version that it was the complainants party which started abusing the appellants party as a result of which a sudden fight developed in front of the second gate of the appellants cycle stand. On the facts found by the trial Court it follows clearly that there was a mutual fight between the parties. In that view, the trial Court was not justified in convicting any of the accused by having recourse to Section 149, I. P. C. In a mutual fight, there is no common object. But the trial Court arrived at the conclusion that the appellant was one of the persons who stabbed the deceased Anwarul Hasan. It did not give any finding as regards the nature of the injuries caused by the appellant.

Reasoning: 5. In appeal the learned appellate judge on the erroneous basis that in the First Information Report, there is no reference to the appellants stabbing Anwarul Hasan, acquitted the appellant under Section 304 (I). I. P. C., but sustained his conviction under Section 307/149 and Section 323/149 I. P. C. We have gone through the First Information Report. Therein it is clearly stated that the appellant was one of the persons who stabbed Anwarul Hasan; but there is no evidence as to the nature of the injury caused by him.We have earlier come to the conclusion that injuries to deceased were caused during the course of a mutual fight. Hence on the basis of the evidence on record, the appellant can be convicted only under Section 324, I. P. C. His convictions under Section 307/149, I. P. C. as well as under Section 323/149, I. P. C. are clearly unsustainable.