KALLU ALIAS MASIH Vs. STATE OF M P

JUDGEMENT

(1.) This appeal is by the four convicted accused against the judgment dated 13-12-2004 of the High Court of Madhya Pradesh allowing in part, Criminal Appeal No. 874 of 1995 filed by the State.

(2.) The case of the prosecution is that on 5-7-1993, at about 6 p.m., an unlawful assembly of 27 persons, including Kallu, Safi, Madaniya and Bhuria (appellant Nos.1 to 4 herein) and one Anwar, came to the house of Sadruddin (PW-4), armed with swords, Ballams, lathis, hockey sticks, farsas and dharias, shouting "kill/cut Sadruddin". Kallu dealt a blow on the head of Sadruddin with a sword. Madaniya also dealt a blow with a sword on his hand. Shafi gave a blow of sword injuring his forehead, nose and jaw. Bhuria gave a blow with a spear injuring his thigh and calf. On seeing Sadruddin being attacked, Sabdar Bano (PW-6), Noor Bano (PW-7), Baby (PW-9) and Annobai (PW-10) rushed to the rescue of Sadruddin. They were also beaten up by the appellants and their associates. Sabdar Bano received injuries on her head and body. Annobai received injuries on the head. Baby and Noor Bano received injuries on their hands. By then, a Police van came near the spot. On seeing it, the appellants and others took to their heels. Kaniz Bano (PW-3) who was sitting outside her house and who witnessed the entire incident, along with some others, took the injured persons to the hospital. Kaniz Bano also lodged an FIR (Ex. P-28) within half an hour of the incident in Police Station, Dhar, naming all the 27 persons. They were tried by the 3rd Additional Sessions Judge, Dhar, for the offences under Sections 147, 148, 307/149, 324/149 and 323/149 of the Indian Penal Code. Appellant Nos. 1 and 2 and one Nazir Khan were also charged under Section 25/27 of the Arms Act.

(3.) The trial court by judgment dated 16-8-1995 acquitted all 27 accused primarily on three grounds. The first is that all the eye-witnesses belonged to Sadruddin group who had enmity with the accused and, therefore, their statements were not reliable. The second is that no independent eye-witness was examined even though some spectators were stated to be present. The third is that there were inconsistencies in the statements of the eye-witnesses.