Onkareshwar Bhatt, J. - (1.) -State of U. P. has preferred this appeal against judgment and order of acquittal dated 25.9.1990 passed by the then IInd Additional Sessions Judge, Jalaun at Orai in Sessions Trial No. 137 of 1998. Accused respondents were tried for the charges under Sections 147, 148 and 307 read with Section 149, I.P.C. and acquitted.
(2.) INITIALLY leave to appeal was declined by order dated 14.7.1992. The above order was set aside in appeal by Special Leave by the Supreme Court by order dated 4.9.2002 and the matter was remitted back for being dealt with on merits. Thereafter by order dated 24.3.2003 the appeal was admitted. During pendency of the appeal accused-respondents, Battu alias Jaishri Ram and Teeka Ram died. By order dated 20.5.2003 the appeal was ordered to abate against them. Sri R. S. Maurya, learned A.G.A. for the appellant and Dr. R. Dwivedi and Sri R. P. N. L. Srivastava, learned counsel for the respondents have been heard.
(3.) ACCORDING to the prosecution case informant, Virendra Kumar, P.W. 1, along with Raghav Ram, P.W. 2, was sitting on a cot on chabutra of Panna Lal in village Nawar Police Station Gohan district Jalaun at 8.30 p.m. on 7.10.1987 and an electric bulb was emitting light. On the other chabutra Shiv Balak, Shiv Kumar, Anjani Kumar and Virendra Kumar were also sitting and were talking. At that time, Battu alias Jaishri Ram (since dead) armed with axe, Ram Adhar armed with a single barrel gun, Bhikhari armed with lathi, Ramji armed with a single barrel gun, Suresh armed with lathi, Teeka Ram (since dead) armed with lathi, Pramod armed with iron rod and Prem Narain armed with a single barrel gun arrived. A case of theft was going on against six persons including Battu alias Jaishri Ram, Suresh and Ram Adhar. In that theft case, informant, Virendra Kumar and injured, Raghav Ram were witnesses. Battu alias Jaishri Ram and others persuaded the informant several times not to appear as to witness in the above theft case. The informant told them that he would depose the truth in the Court. Due to the said enmity accused-respondents forming an unlawful assembly variously armed came to the chabutra of Panna Lal. Accused, Battu alias Jaishri Ram and Ram Adhar again enquired from the informant about his appearing as witness. However, the informant maintained that he would depose what he had seen. Thereupon accused, Battu alias Jaishri Ram wielded axe which hit on the hand of the informant. Second axe blow hit the informant in his leg. The informant had a danda in his hand which he wielded in self-defence on Battu. In the meantime, accused, Ram Adhar fired on them but since informant sat down the fire hit the door. In order to save himself the informant ran towards the house of Panna Lal and entered the house and bolted the door. Accused, Ramji and Prem Narain also fired which hit the door. On their alarm witnesses and villagers arrived and the accused made good their escape F.I.R. was lodged by informant, Virendra Kumar at the police station on the same night at 11.10 p.m. The accused-respondents have denied the prosecution case. Accused, Battu alias Jaishri Ram has stated that he along with his brother, wife, Smt. Jasman, and son was returning after witnessing T.V. from the house of Babu Ram. When they reached near the door of Laxmi, the informant, Virendra Kumar, Raghav Ram and others asked them not to plough the field of Pramod and assaulted them by lathis due to which they sustained injuries. Sub-Inspector, Ram Gopal Pandey, Investigating Officer of the case, has stated that wife of Battu had lodged the report on 8.10.1987 under Section 323, I.P.C. wherein she has alleged that she and her husband, Battu had sustained injuries. He has stated that since it was a non-cognizable report he did not investigate the same and did not think it necessary to obtain permission for investigation. D.W. 1, Dr. S. K. Upadhyay has stated that the injuries of Smt. Jasman, wife of Jaishri Ram were examined on 11.10.1987 by Dr. H. K. Vadil in district hospital Orai. He has proved the injury report, Ext. Kha-1. Following injuries were found by the doctor on the person of Smt. Jasman : (1) Abrasion 4 cm. x 3 cm. on the right side of face just outside right eye scab present. (2) Diffused skin colour swelling present all over the right dorsum of hand tender on touch movement of finger of right stitched. X-ray advised. (3) Contusion mark 10 cm. x 6 cm. on the front of right side abdomen reddish black in colour. (4) Contusion mark 11 cm. x 5 cm. on front on outer margin right thigh reddish black in colour. (5) Pain on anterior aspect of left side chest. No injury mark seen. ;