KAUSHAL KISHORE MISHRA Vs. STATE OF U.P.

JUDGEMENT

(1.) By means of this application filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C."), seven accused applicants, namely, Kaushal Kishore Mishra, Smt. Indrani Mishra, Kaushika Mishra, Shailja Mishra, Shailka Mishra, Kaushlendra Mishra and Harsh Vardhan Verma, have challenged Charge Sheet No. 358A of 2008 dated 06.07.2009 in Case No.1713 of 2009 (Case Crime No. 827 A of 2008) under Sections 147, 323, 336, 296, 504, 505 (3), 506 IPC, Police Station Kotwali Nagar, District Gonda and the entire proceedings in the aforesaid case pending in the Court of Judicial Magistrate Second, Gonda. Applicants have also requested that final report submitted by police in Case Crime No. 827A/2008, under Sections 147, 323, 336, 296, 504, 505 (3), 506 IPC be accepted.

(2.) Facts, in brief, giving rise to this application are that a First Information Report (hereinafter referred to as "FIR") No. 90/09 registered as Case Crime No. 827A/2008, under Sections 147, 323, 336, 296, 504, 505 (3), 506 IPC, was lodged on 19.03.2009 at 05:40 P.M. at Police Station Kotwali Nagar, District Gonda by Mohd. Shabbir Khan son of Abdul Rajjak Khan (hereinafter referred to as the "Complainant"), wherein ten accused including all the applicants and others were implicated alleging that they are resourceful persons indulged in unlawful activities and also have political patronage. They have unauthorisedly encroached upon the land of Maszid Hanafia Madarsa Islamia Mousul Ulma Warsi, Baharaich Road, Gonda and have created a mound of earth soil causing lot of inconvenience to the people who used to go Madrasa for study and offer Namaj in Maszid belong to Muslim Community. Accused persons are intending to raise unauthorised construction on the disputed land which used to be opposed by Complainant as well as other respected persons of society and they also put pressure upon authorities to make impartial enquiry in the matter so that communal harmony be maintained. Pursuant thereto police made an investigation and after perusal of government record, illegal possession of accused persons was removed. A document of compromise was also prepared and signed by representatives of both parties which included signatures of accused persons. Representatives of Muslim Community were honestly following the aforesaid compromise but accused and their relatives used to talk senseless and tried to find out an opportunity to weaken Complainant and other representatives of Muslim Community. On 21.11.2008 when people had gone to offer Namaj, after parking their cycles, accused persons started to damage their cycles as also throwing bricks and stones and started riots. Hearing noise, members of Peace Committee came to settle the matter but accused being annoyed attacked collectively upon Syed Ali, Sonu, Babbu, Mansoor Khan, Kallan Khan, Complainant and others and also hit them with Lathi and Danda causing injuries to several persons. Complainant and others ran away to protect themselves but accused continued to threaten them of killing and evicting from area itself. Accused with a common intention formed unlawful assembly, entered Maszid and Madarsa to kill Complainant and others, beat them inside the Mosque and damaged goods kept in Mosque, like, Clock, Chatai etc. They also attempted to take away Rs. 630/- which was a donation. Naib Secretary, Kallan Khan tried to stop them from taking away donation box, whereupon accused Kaushlendra hit on the chest of Kallan Khan with his legs and forcibly taken away donation box.

(3.) Police made investigation and during course of investigation recorded various statements including that of Shabbir Khan, Complainant, on 19.03.2009. On the same day Police also recorded statements of Heera Lal Gupta and Sheetla Bux Tripathi, who said that accused Kaushlendra Mishra was with him when he had gone to Court for some work and in the afternoon he received an information that Kaushlendra Mishra's family members were assaulted by the persons who had come to offer Namaz. The witnesses and Kaushlendra Mishra rushed to the house and found Kaushlendra Mishra's father, aged about 70 years and mother as well as sister in serious injured condition. Sri Kaushal Kishore Mishra, Smt. Indrani Mishra, Smt. Kaushaka Mishra, Smt. Shalaja Mishra, Km. Shalaka Mishra and Harsh Vardhan Verma were medically examined on 21.11.2008 at District Hospital Gonda and their medical report containing injuries are Annexures-4 to 9 to the application. Smt. Indrani Mishra also found to have suffered fracture in the shaft of middle phalanx of right index finger. Medical examination of Mansoor, Mohd. Kallan Khan, Sonu, Syed Ali and Babbu was held on 09.12.2008 wherein also they found to have sustained injuries and all where categorized by Doctors in District Hospital, Gonda as simple injuries caused by hard and blunt object about three weeks back.