Anurag Kumar, J. - (1.) THIS criminal appeal is preferred by Soharab All, Mohd. Nazeer and Musharraf Ali, under Section 374(2), Cr.P.C. aggrieved by the judgment and order dated 21.8.1996 passed by the Vth Additional Sessions Judge, Gonda in S.T. No. 159/90, State v. Mohd. Ali and others, convicting and sentencing the appellants Musarraf Ali and Sohrab Ali under Section 148, I.P.C. for a period of two years rigorous imprisonment and appellant Mohd. Nazeer under Section 147, I.P.C. for a period of one and half years rigorous imprisonment and convicting all the appellants under Sections 307/149, I.P.C. for a period of 7 years rigorous imprisonment. During the pendency of appeal appellants Sohrab and Musharraf Ali have died and by order dated 16.5.2008 Soharab's Ali and order dated 7.12.2012 Musharraf All's appeals are abated against them. Now this appeal is against Mohd. Nazeer only.
(2.) THE prosecution case, in brief, is that in the intervening night of 4/5.8.1989 between 11 and 12 hours, complainant Mohd. Safiq's father Ibrahim and his brother Mohd. Farooque were sleeping outside the house in front of door and complainant and ladles of house were sleeping inside. There was a lantern on the door. Musharraf Ali, Soharab Ali and Soharab's son Nazeer and 2 -3 more persons came with lathi, farsa and ballam and started beating, complainant's father and brother, hearing the noise complainant came outside the house with torch and saw that Soharab with ballam, Musharraf Ali with farsa and rest with lathi were attacking his father and brother with intention to kill them. Hearing the noise, many villagers reached there and accused persons ran away from the spot. F.I.R. was lodged at 11.15 a.m. on 5.8.1989 as Crime No. 48/1989, under Sections 147, 148, 307, 504 and 506, I.P.C. Injured persons were medically examined and after investigation, charge -sheet was submitted against accused persons, under Sections 147, 148, 307, 504 and 506, I.P.C. Case was committed to Sessions Court and IIIrd Additional Sessions Judge, Gonda framed charges against Mohd. Ali and Sohrab Ali under Section 148, I.P.C. and under Section 147 against Nazeer and under, Sections 307/149 against Mohd. Ali, Sohrab Ali and Nazeer.
(3.) PROSECUTION examined five witnesses P.W. 1 Mohd. Safiq, complainant P.W. 2 Ibrahim and P.W. 3 Mohd. Farooque injured witnesses, P.W. 4 Dr. G.K. Singh who examined the injuries of Ibrahim and Farooq, P.W. 5 Ramchandra Singh S.I., Investigating Officer of this case. Prosecution papers were proved by witnesses and written report was Ext. Ka -1, inspection report of torch and lantern was Ext. Ka -2, inquiry report of Ibrahim Ext. Ka -3, injury report of Farooque Ext. Ka -4, site plan Ext. Ka -5, charge -sheet Ext. Ka -6, F.I.R. Ka -7 copy of M.C. Ext. Ka -8. The trial court by impugned judgment after hearing the parties convicted Mohd. Ali and Mohd. Nazeer under Section 307/149, I.P.C. for seven years rigorous imprisonment and Mohd. Ali and Soharab Ali under Section 148, I.P.C. for two years rigorous imprisonment and Mohd. Nazeer under Section 147, I.P.C. for one and half years rigorous imprisonment. Aggrieved by the said judgment, the present appeal was preferred on the ground that there is no injury of ballam and farsa. There is a delay in lodging the F.I.R. and no explanation of delay was given. Injuries are simple in nature and no case under Section 307, I.P.C. is made out utmost a case of under Section 323. I.P.C. is made out.;