JUNGI KHAN Vs. STATE OF U P

JUDGEMENT

(1.) C. P. Mishra, J. This criminal revision has been preferred against the judgment and order dated 10-12-1984 passed by Sri V. C. Jain, Sessions Judge, Moradabad in Criminal Appeal No. 338 of 1983 affirming the order and judgment dated 5-12-83 passed by Sri R. S. Rathi, IIIrd Additional Munsif Magistrate, Moradabad convicting and sentencing the applicants-revisionists under Section 332 I. P. C. to one year R. I. and a fine of Rs. 500 in default of fine further R. I. for two months.

(2.) THE facts giving rise to this revision are that the conviction and prosecution of the appellants proceeded on a report lodged by Ram Mohan Gupta, the Manager of Cinema Hall at Thakurdwara run by the Uttar Pradesh Chalchitra Nigam on 6-7-81 at 11. 50 p. m. at Police Station Thakurdwara to the effect that the same day at 10 p. m. while he was on duty at the cinema hall three or four persons out of whom two were carrying Dandas arrived and demanded passes for the show and when he expressed his inability since no passes are issued in cinema hall run by Chalchitra Nigam, they abused and assaulted him and left the place advancing threats to shoot him. No one was named in F. I. R. as accused but it was mentioned that he would be able to recognize them. Ram Mohan Gupta was subjected to medical examination at Primary Health Center Thakurdwara the same night at 00. 15 hours and a reddish contusion 3 cm. x 2 cm. on front of head, a reddish contusion 2 cm x 1 cm on the back of right index finger and reddish bruise 4 cm x 3 cm on the outer aspect of the right thigh were found and he also complained of pain in the abdomen on left side. THE injuries were reported to be simple, fresh in duration and caused by blunt weapon. During the course of investigation which followed Jungi Khan and Puttan Khan were put up for test identification on 28-8-81 at which both of them were correctly identified by Ram Mohan Gupta the victim of the incident and Shiv Charan, one of the gate keepers on duty at the cinema hall. While Ram Bhool Singh another gate keeper correctly identified Jungi Khan and committed mistake in identifying Puttan and Intzar Husain, head operator correctly identified Puttan but committed mistake in identification of Jungi Khan. On the basis of the result of test identification both Jungi Khan and Puttan Khan were challaned. At the trial, besides Ram Mohan Gupta, the identifying witnesses Shiv Charan, Ram Bhool Singh and Intzar Husain were examined as witnesses of fact, besides Dr. Akhlesh Kumar who had conducted the medical examination of Ram Mohan Gupta. Sri R. S. Gupta, S. D. M. who had conducted the test identification. Constable Shanti Sarup who had drawn up the F. I. R. on the basis of the written report lodged by Ram Mohan Gupta at Police Station, Thakurdwara and had registered the case and Sub-Inspector Shiv Dhyan Singh who had investigated into the case and submitted charge sheet. Shiv Charan Singh, Ram Bhool Singh and Intzar Husain were declared hostile by the prosecution but the learned Magistrate relying mainly on the testimony of Ram Mohan Gupta as corroborated by the medical evidence regarding the injuries caused to him has recorded the conviction and sentenced the appellants and aggrieved by the order of the learned Magistrate, appellants have preferred an appeal in the Appellate Court.

(3.) HEARD Sri S. A. Shah, learned counsel for the revisionists and learned A. G. A. for the State and perused the record which has also been summoned.