STATE Vs. KHAN MOHD.AND OTHERS

JUDGEMENT

(1.) THIS appeal preferred, under section 378 of the Criminal Procedure Code, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judg­ment and order dated 13.07.1992 passed by II Addl. Sessions Judge, Dehradun, in Sessions Trial No. 95 of 1991, State Vs. Khan Mohd. & others, whereby the learned IInd Addl. Sessions Judge has acquitted the accused-re­spondents namely Khan Mohd., Ali Hasan, Shaukat, Jaheed and Iqbal for the offence punishable under Section 147 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC), u/s 307 r/w Section 149 IPC, u/s 325 r/w Section 149 IPC and u/s 323 r/w Sec­tion 149 IPC.

(2.) I have heard Sri M.A. Khan, learned Brief Holder for the appellant/State and Sri R.P. Nautiyal, learned counsel for Respondent Nos.1, 2 and 5 and perused the entire material available on record.

(3.) IN brief the prosecution case is that on 16.10.1990 at about 7:00 A.M., respondents No.1 to 4 namely Khan Mohd., Ali Hasan, Shaukat (now died) and Jahid (now died) had surrounded Mainuddin'(P.W.2) at Bhuddi.Chowk and caused injuries to him with cudgel (LATHIS) and iron-rods. When Noor Hasan and Nibabuddin tried to save P.W.2 Mainuddin, then the above-said assembled persons also caused injuries to them with cudgel and iron-rods. This incident was witnessed by Mir Hasan, Mehndi Hasan, Abdul Hamid, Shahzad and so many other persons. Then, the injured Mainuddin, Noor Hasan and Nibabuddin were taken to the hospital by the complainant-Ayub Khan (P.W.I) for the medical examination where Mainuddin and Noor Hasan were admit­ted in the hospital. It was also averted that Meer Hasan also received injuries by mediating between them. With these averments, P.W.I Ayub Khan has reached to the police station along with the medical reports. He further averted that on the previous night, a quarrel also took place between them and respond­ent No.5-lqbal and due to this enmity, these accused persons have caused in­juries to the above-said injured persons. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.I Ayub Khan at Kotwali, Dehradun on 16.10.1990 at 10:50 A.M. On the basis of this FIR, the Chik FIR was prepared by H.M. Inder Singh and case was reg­istered against the accused persons u/s 308/323 IPC, the Chik FIR is Ex.Ka-12. The necessary entry was "also made in the G.D., the copy of G.D. is Ex.Ka-13. The investigation of this case was en­trusted to S.I. Sompal Singh, P.W.5. The injured persons were examined by P.W.6 Dr. G.S. Rawat and the injury report of injured Mainuddin (P.W.2) is Ex.Ka.14, injury report of injured Nababuddin (P.W.3) is Ex.Ka-15 and injury report of injured Noor Hasan is Ex.Ka-16. Dur­ing the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka-2. He also took in his possession the blood stained clay and the plain clay from the place of occurrence and prepared a Fard, i.e. Ex.Ka-3. The I.O. also took in his possession the blood stained clothes of the injured Munnu. @ Mainuddin (P.W.2) and prepared a Fard, i.e. Ex.Ka-6. Ex.Ka-8 is the Fard prepared by the I.O. for taking the clothes of injured Noor Hassan. The I.O. also took the Patal in his possession which was used in the above-said crime and also prepared a Fard, i.e. Ex.Ka-9. Later on, during the investigation, the I.O. came to the conclusion that against the accused persons, offence under Sec­tions 147/307/323/325 IPC is made out and the entry was also made in the G.D. and accordingly the offence was converted against the accused persons, the copy of the said G.D. is Ex.Ka-10. During the course of investigation, the I.O. recorded the statements of wit­nesses and after completing the investi­gation, the Investigating Officer submit­ted that charge sheet against the re­spondents-accused under Sections 147/307/323/325 IPC, i.e. Ex.Ka.11.