- (1.) COMPLAINANT appellant Smt. Fatima has filed this appeal challenging the judgment and order of acquittal dated 15.1.82 passed by Judicial Magistrate IInd Jaunpur in Case No.433 of 1979. By the impugned judgment, accused persons have been acquitted from offences under Sections 149, 427, 506, 325/149 I.P.C.
(2.) INCIDENT in the present case is alleged to have occurred on 13.8.79 at 6 a.m. when the accused are alleged to have belabored complainant appellant and her son by lathi. Complainant sustained fracture on left hand. Hearing the commotion, witnesses had arrived at the spot and saved the complainant and her son. Because of assailant's terror, who all were eight in numbers, complainant did not proceed to the police station to lodge her F.I.R. and instead, went to the District Hospital for seeking medical help. Learned trial Magistrate after charging the appellants with aforesaid offences tried them for it and after conclusion of the trial, on marshalling oral and documentary evidences, it concluded that:- 1. prosecution has falsely implicated some innocent persons in the incident, 2. motive for assaulting complainant and her son has not been established, 3. natural and local witness have not been produced and have been withheld and only interested and partisan witnesses were examined, 4. prosecution allegations does not seems to be proved, as ocular narration of the facts does not inspire any confidence, 5. the papers furnished by the accused persons indicated that the place of incident, as stated by the prosecution, is not fixed and the incident had occurred at some other places, 6. lastly, on the dicey nature / depositions by the prosecution witnesses, it cannot be said that the prosecution has been able to establish accused guilt beyond all reasonable doubt and hence they cannot be anointed with the guilt alleged against them. Holding thus, learned trial Magistrate acquitted all the accused respondents by impugned judgment and order, which acquittal order is under challenged in the instant appeal. At the time when the appeal was called out for hearing, none appeared for the accused respondent and therefore, Sri Ranjay Kumar was appointed as amicus curiae to assist the Court.
(3.) APPEAL was admitted in this Court in 1982. Leave was granted on 24.2.1982. Pending consideration of the appeal, respondent no.1 Mehboob Alam, respondent no.2 Umar Khan, respondent no.3 Rauf Khan, respondent no.4 Mustaq Ahmad and respondent no.6 Mohd Yasin expired and therefore, so far as they are concerned, this appeal is abated. I have heard Sri Ranjay Kumar, learned amicus curiae and Sri Sangam Lal Kesherwani, learned AGA for the State and Sri R.J. Alvi, learned counsel representing the accused. Sri Ranjay Kumar, learned amicus curiae pointed out that the appeal has to be considered regarding rest of surviving respondent accused Rizwan Ahmad, Mujeebur Rehman and Mohd Ali only. After hearing both the sides and after looking to the available record, I do not find any reason to disagree with the findings of fact recorded by learned Magistrate. The opinion, which has been taken by the learned Magistrate and reasons of acquittal recorded by him cannot be said to be perverse or against the merits of evidences on record. Complainant Smt. Fatima has also expired and there is no substitution application under Section 302 Cr.P.C. to prosecute the accused respondent by her heirs. After more than three decades, there is no reason for this Court to keep the hearing of the appeal deferred and pending for the aforesaid reason.;