Rohinton Fali Nariman, J. - (1.) - The incident which occurred in the present case took place in the dark on 30th January, 1990. 30 January is a dark day in world history. Charles I of England lost both his crown and his head on this day in 1649. Hitler came to power on this day in 1933. And the Father of our Nation was assassinated on this day in 1948. The backdrop of this incident occurred when one Ajij Khan and Shabbir Khan, had contested a Panchayat election. Shabbir Khan was elected as Sarpanch resulting in bad blood between the complainant party and the accused/appellants. On the date of the incident, one Chhote Khan lodged an FIR of the said incident in which he stated that one Sayeed Khan had told him that when he was coming from village Shyampur to Mukhtyar Nagar, Hafiz Khan, Jafrudeen and three to four other persons came and questioned him as to why he had raised a shoe on the aforesaid Shabbir Khan, who was the Sarpanch in the town of Sehore. Chhote Khan with three others went to lodge a report to this effect in Shyampur. Further, when they came near the Culvert of Ganda Nala at about 06:30 p.m. to 07:00 p.m. then on the way to the Culvert eight persons, namely, Hafeez Khan, Rafiq Khan, Hakim Khan, Ayyub Khan, Jafrudeen, Israil Khan, Munne Khan, and Salim khan together with 7-8 other unnamed persons armed with Lathis and Farsis started to beat five of them. This was done with the common object of causing death, because these persons were badly beaten and indeed one, namely, Ismail Khan, succumbed to his injuries. Based on the aforesaid incident an FIR was lodged. It needs to be noted at this juncture that seventeen persons were ultimately arrayed as accused in the case.
(2.) After examining the evidence before it, the trial court, being the order of the IInd Additional Sessions Judge, Sehore, arrived at the following conclusions:- 1. There were six eye-witnesses including the injured eyewitnesses in the case but only one of them could be said to be an independent witness who, however, turned hostile. 2. Two other independent eye-witnesses were available but they were not examined by the prosecution. 3. There were injuries on both sides. In fact, apart from the complainant party, the accused party also had three persons who were injured. Rafeez Khan had injuries which were deep in the skull and a swelling in the middle of the left hand and a swelling on the left leg; and Ismail also had a deep injury in the middle of the skull, and also had a swelling in the right arm, elbow of the right hand, and knee of the right leg; and Munne Khan also had a swelling on the back side of the elbow of the left hand and swelling on the left shoulder.
(3.) The trial court then went on to say that the incident allegedly occurred around 06:30 p.m. to 7:00 p.m. on 30th January, 1990 which was a dark winter day and, therefore, it would have been extremely difficult to identify the 17 persons who were supposedly the aggressors in the incident.;