- (1.) Three separate appeals have been filed against Judgment dated 13.08.2001 passed by Addl. Session Judge, Court No.3, Lakhimpur Kheri in Sessions Trial No. 206 of 1990 under Sections 302/307/452/325 & 323 Indian Penal Code 1860 (here-in-after referred as Code for brevity) whereby accused Sirdar son of Natha, resident of Bhadura, Police Station Phardhan District Lakhimpur Kheri has been acquitted and accused Rahmat son of Fakira, resident of Village Bhadura, Police Station Phardhan, District Lakhimpur Kheri and accused Jaan Mohd. son of Subhan, resident of Birampur Police Station Mitauli, District Lakhimpur Kheri have been convicted under sections 323/325 & 452 of the Code. State has filed Criminal Appeal No. 440 of 2004 to set aside the judgment acquitting accused Sirdar and to enhance the sentence under sections 302/307/452/323 & 325 of the Code against respondent-accused Rahmat and accused Jaan Mohd. respectively. Simultaneously Criminal Appeal No. 784 of 2001 and 866 of 2001 have also been filed by accused Rahmat and Jaan Mohd. against their conviction. Since all the three appeals have been filed against one and the same judgment, they all are taken up together for disposal.
(2.) Brief facts as revealed from First Information Report (Exhibit Ka-01) are that on 23.5.1989 one Gobare son of Kadhile resident of Kotva, District Lakhimpur Kheri was making "Kothari" in the neighborhood of his son-in-law Siddhique in Village Bhadura for his residence. At about 4.30 p.m. on the same day respondent-accused Rahmat son of Fakira, Fakira son of Abdulla, Sirdar son of Natha and Jaan Mohd. son of Subhan came there and started giving him beating. Accused Rahmat and Jaan Mohd. were armed with "kanta" and accused Fakira and Sirdar were having "lathi" in their hands. On his hue and cry Harun Khan son of Siddhique reached there. Gobre ran away into house of Munshi to save himself, but accused chased him there also and assaulted him. When his wife Haffizan tried to save him they also gave beating to her also. The accused persons were inquiring about his daughter Zaibunnisha and son-in-law Siddhique. When Gobare told him that Zaibunnisha and Siddique had gone to Sallihabad bazar to consult doctor they left him and went to Sallihabad bazaar. Accused persons found them near old Crusher at about 5 o'clock in the evening, while Siddhique and Zaibunnisha were coming back through lakhimpur-mohammadi road. Accused persons assaulted them there with "kanta and "lathi". Witnesses Mustafa, Mohd. Raza-father of Siddhique, Khalil, Callector singh and many others, who were there at "Crusher" came in and saved them. Siddhique and Fakira had old enmity due to some property. Due to this animosity accused persons had attacked them with intention to kill. F.I.R. was lodged by Gobare verbally on 23.5.1989 at 8.20 p.m. in police station Phardhan, District Lakhimpur Kheri and medical examination of injured persons were conducted by Dr V. K .Dixit on the same day in district hospital Kheri and injury report was prepared (Exhibit Ka-13) in which following injuries were found on the body of Smt. Zaibunnisha: " 1. Lacerated wound 7 cm x 1.5 cm x Scalp deep on left side of head 12 cm above the left ear. Clotted blood adhere in an around the wound. 2. Abrasion Multiple in an area of 9cm x 3cm on back of left elbow & upper part of left forearm. 3. Abrasion 2cm x 1.5 cm on top of left shoulder. 4. Contusion 5 cm x 2 cm on back of Right Arm 17 cm below to top right shoulder Red Around the swelling 12 cm x 8 cm. 5. Contusion 5 cm x 2 cm on outer aspect of left thigh 15cm above the left knee jt. 6. Complains of plain in right thigh but mark of external injury not visible."
(3.) Gobare was also medically examined and following injuries (Exhibit Ka-15) were found on his body: " 1. Traumatic Swelling 5.5 cm x 3 cm on top of head 17 cm above the root of neck. 2. Contusion with Abrasion 5 cm x 2 cm on back of left forearm 15 cm below the left elbow Jt. 3. Abraded Contusion 7.5 cm x 2 cm on back of Right forearm 15 cm below the Right elbow Jt. Around the Swelling 12 cm x 8 cm colour Red. 4. Lacerated wound 3 cm x 1.5 cm x bone deep on front of Right leg 18 cm below the Rt. Knee. 5. Abrasion 2 cm x 0.5 cm on inner side of Rt. Ankle Jt. 6. Complains of pain in left leg and chest but mark of external inj. not visible.";