MEHBOOB S/O SHARIF Vs. STATE

JUDGEMENT

(1.) This appeal, preferred by the appellant under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 3.4.1993 passed by Additional Sessions Judge, Roorkee in S.T. No. 197/1990 State v. Mehboob and two Ors. whereby the learned Additional Sessions Judge convicted the accused/appellant Mehboob under Section 324 of the Indian Penal Code, 1860 (hereinafter to be referred as the I.P.C.) and sentenced him to undergo rigorous imprisonment for a period of three years. However, the co-accused persons, namely, Khurshid and Sageer were acquitted of the charge levelled against them by the trial court.

(2.) I have heard Sri Manish Arora, learned Counsel for the accused/appellant as well as Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on record.

(3.) In brief, the prosecution case is that Ishrar (P.W.1) lodged the F.I.R. at Police Station Bhagwanpur with the averments that on 5.10.1989 some altercation took place between his brother Bhura (deceased) and the accused/appellant Mehboob in the shop. Keeping this incident in mind, the accused/appellant Mehboob armed with country made pistol and the co-accused Khurshid and Sageer armed with Lathi met his brother on 7.10.1989 at about 06:00 A:M when his brother Bhura had gone in the street for answering the call of nature. On the instigation of the accused/appellant Mehboob, the co-accused persons armed with Lathi ran behind his brother to beat him. His brother raised alarm. On hearing the noise, he along with Mashkur (P.W.2), Jinda and some other persons reached at the place of occurrence. Seeing these persons, the accused/appellant Mehboob with intention to kill his brother fired on him with the revolver which hit on his right hand. Thereafter the accused/appellant and the co-accused persons fled from the place of occurrence. With the same averments, the F.I.R. was lodged by Ishrar (P.W.1) at Police Station Bhagwanpur, District Haridwar on 7.10.1989 at 08:10 A:M. That F.I.R. is Ext.Ka-1. On the basis of that F.I.R., Chik F.I.R. (Ext.Ka-5) was prepared by Head Mohirror Sultan Singh (P.W.6). Initially the investigation of this case was entrusted to Sub Inspector Babu Ram Yadav (P.W.5). On the same day i.e. on 7.10.1989 at 08:40 A:M, the injured Bhura was medically examined by Dr. D.M. Sharma (P.W.3), Medical Officer and the injury report (Ext.Ka-2) was prepared. Later on injured Bhura died in the hospital. Thereafter, the I.O. prepared the inquest report which is Ext.Ka-6. On 26.10.1989 at 01:30 P:M, post-mortem examination of the dead body of the deceased was conducted by Dr. Vipin Kumar (P.W.4) and the post-mortem report thereof was prepared which is Ext.Ka-3. During the course of investigation, the I.O. recorded the statement of the witnesses and prepared the site-plan of the place of occurrence. That site-plan is Ext.Ka-4. Later on the investigation of this case was entrusted to S.I. Diwan Singh (P.W.7), who on completion of the investigation, submitted the charge sheet against the accused/appellant and the other co-accused persons (acquitted by the trial court). That charge sheet is Ext.Ka- 7.