U. K. Varma, J. - (1.) THIS government appeal is against the judgment and order of Sri Ruri Mal, I Additional Sessions Judge, Rampur, dated 31 - 5-78 acquitting all the respondents Chand Khan, Sharif Khan, Shabbir Khan, Shabbu, Salim Khan, Mahboob Khan, Sajian, Bulley Khan and Ishtiaq Ali of the charges under sections 452, 302, read with sections 149, 325 read with sections 149, 324, read with section 149 and 323 read with section 149 of the Indian Penal Code, Shabbu under Sections 302 and 148 IPC, Bulley Khan, Sharif Khan, Shabbir Khan and Salim Khan under section 147 IPC and Chand Khan, Sajjan Khan, Mahboob Khan and Ishtiaq Ali under section 148 IPC.
(2.) IT has not been assailed that the deceased Shah Alam, bis cousin Fahim PW-6 and also the respondent Chand Khan were engaged in Kar- chobi business. Aslam PW-7 aged about 7 to 8 years had earlier been working for Chand Khan. He, however, left his service and joined the set up of Fahim Khan - On 26-5-77 Chand Khan, Shabbu Khan and Ishtiaq Khan went to the workshop of Fahim Khan and insisted on taking back Aslam to work for Cband Khan. When Fahim prevented them from doing so, he was assaulted. Fahim lodged a report, about the matter at the police station concerned. The prosecution case is that the deceased Shah Alam and Fahim PW 6 used to do the Karchobi business jointly. As adequate accommodation was not available at one single place, they had two workshops one, on the first floor of the house of Mohammad Jama Khan and the other in the room of Allah Rakhe. The prosecution witness Fahim Khan PW-6 supervised the former 'adda' and Shah Alam deceased the latter one. The respondent Chand Khan having shown his temper to Fahim during the day for having deprived him of the services of Aslam went alongwith the eight respondents Shabbu Khan, Sajjan Khan, Mahboob, Ishtiaq Ali, Bulley Khan, Sharif Khan, Shabbir Khan and Salim Khan late in the evening to Sham Alam, the other partner in business, to teach him a lesson more so as Fahim Khan had lodged a report against him, Shabbu Khan and Ishtiaq Ali. The respondents Chand Khan, Shabbu Khan, Sajjan Khan were carrying 'Chhuri', Mahboob Khan and Ishtiaq Ali 'Chakoo' and Bulley Khan, Sharif Khan, Shabbir Khan and Salim Khan 'dandas' at that time. The deceased Shah Alam then was sitting on a cot in the open space in front of his house with Irshad Khan, Laber Khan and Kaiser Kban. The respondents without giving any time to them started assaulting them Chand Khan gave two 'Chhoori' blows to Shah Alam, and Bullo Khan, Shareef Khan, Shabbir Khan and Saleem Khan assaulted him and Irshad Khan, Babu Khan and Kaiser Khan with dandas. On their crying aloud, the informant Keramat All, the father of the deceased Shah Alam, came out from inside his house. The witnesses of the Mohalla named Kalian Miyan, Saadat Khan, Arif Khan, Sardar Dulle Khan, Afsar Khan and Rahat Khan too arrived. The respondents, as if it was not enongh, entered the house of the informant and caused injuries to his daughter Naeema Parveen in her cheek and his sister-in-law Raees Begum in her thigh and chest. While the respondents were coming out of the informant's house, the respondent Shabbir Khan instigated Shabbu to kill Shah Alam. He thereupon, gave a full blow with Chhuri on his neck. Shah Alam fell down The respondents thereafter filed away. Shah Alam, who on account of the injuries sustained was In a precarious condition, was taken on a rickshaw to the Hospital. He died on reaching there. Naeema Parveen during the incident had used a Chhoori' meant for cutting vegetables in self defence of her mother when Chand Khan was about to injure her, Karamat Ali, in the hospital, dictated the first information report Ex, Ka 1 to Asmat Ali Khan PW-9 and asked him to take it to the police station Ganj and lodge it there. The check report Ex. Ka. 9 shows that it had been taken down by the Head Constable Shahan Shah Wali Khan PW-8 at 1105 P.M. on 26-5-77 and a case was registered against the respondents under sections 147, 148, 452, 324 and 302 IPC Shahan Shah Wali Khan, when examined, proved that Chand Khan respondent on being arrested by Bharat Singh S. I. PW-10, had been brought to the police station Ganj at 11.05 P. M. and as there were injuries on his person, he along with the letter Ex. Ka. 7 had been sent for medical examination.
(3.) DR. S. P. Pandey. PW-3 who stated to have examined Naeema Parveen, Irshad Khan, Laber Khan, Raees Begum and Qaiser Khan, proved his medical reports about them. They are as follows :- 1. Medical report of Naeema Parveen examined at 11 P. M. on 26-3-77 marked Ex. Ka. 2. 1. Incised wound 5 cm x 1/2 cm x muscle deep on the left cheek below the left eye. 2. Incised wound 1/2 cm. x 1/4 cm. x muscle deep on the left cheek starting from near the middle of injury no. 1 and downwards and backwards. Both the injuries were fresh and had been caused by sharp edged weapon and had been kept under observation. 2. Medical report of Baber Khan examined at 12.10 A.M. on 27-5-77 marked Ex. Ka. 3. 1. Abraded contusion 4 cm. x 1 cm on the outer aspect of the right forearm, lower part. The duration fresh. Advised X-ray. The injuries caused by blunt object kept under observation. 3. Medical report of Raees Begum examined at 12.20 A.M. on 27-5-77 marked Ex. Ka. 4. 1. Abraded contusion 7 cm, x 5 cm. on the front of left thigh, 10 cm. above the left knee joint. 2. Complained of pain in the chest. But no external mark of injury seen. Injury caused by blunt object was fresh and simple in nature. 4. Medical report of Kaisar Khan examined at 12.40 A.M. on 27-5-77. 1. Contusion 2 cm. x 1 cm. on the front of the left ring finger, duration fresh. Injuries caused by blunt object, advised X-ray. 5. Medical report of Irshad Khan examined on 27-5-77 at 12 A. M. 1. Abraded contusion 1 cm. x 1 cm. on the back of the right forearm, 9 cm., above the wrist joint, duration fresh injury simple caused by blunt object. The respondent Chand Khan had also been examined by Dr. S. P. Pandey at 11.10 P. M. on 26-5-77 soon after he had been brought by the constable Ram Pal Singh at the instance of the Police station Ganj. He had the following injuries on his person : 1. Incised wound 2 cm. x 1/4 cm. x depth not probed on the left side of the back 13 cm, below the scapula. Kept under observation. Advised X-ray. 2. Incised wound 1 1/2 cm. x 05 cm x depth not probed on the right side of back, 17 cm. below the scapula. Injury kept under observation. Advised X-ray. 3. Incised wound 1 cm. x 1/4 cm. x skin deep on the left side of the head 11 cm. above the left ear. Injuries nos.1 and 2 had been directed to be kept under observation. X-ray was advised regarding them. Injury no. 3 had been found simple in nature. All the injuries were pointed to have been caused by sharp edged weapon and duration was pointed to be fresh.;