- (1.) THIS appeal, preferred under Section 378 of Code of Criminal Procedure, 1973 (herein after referred as Cr. P. C.) is directed against the judgment and order dated 20-06-1989, passed in Sessions Trial No. 283 of 1987, by the then Sessions Judge, Nainital, whereby respondents Akhtar, Mohd Umar, Nuru, Rais alias Gabru, Yamin, Yasin, Amir Bux and Alia Bux, were acquitted of the charges, framed against them relating to offences punish able under Sections 147,148,302/149. 307/ 149 and 324/149 of Indian Penal Code, 1860 (herein after referred as I. P. C. ).
(2.) WE heard learned counsel for the parties and perused the entire record of trial court. Prosecution story, in brief, is that on 13-05-1987, at about 10:00 a. m. , complainant Jamil Ahmad (P. W. 2) along with his brothers Asgar and Shakil (both deceased), and nephew Mobin (P. W. 3), were ploughing their field, bearing Khasra No. 967, situated in Village Beljuri within the limits of PS. Kashipur. Their tractor was being driven by driver Radhey Shyam (P. W. 4 ). They were in litigation over posses sion of said field with accused/respondent-Alia Bux. On account of this, Alia Bux and his associates were inimical to the complainant (Jamil Ahmad) and his broth ers. On aforesaid date and time when the plot was being ploughed, accused/respond ents Alia Bux, Akhtar, Mohd Umar, Nuru, Rais alias Gabru, Yamin, Yasin and Amir Bux, armed with deadly weapons- pistol, tabals (a sharp edged weapon), knives and lathies, reached in the field. Accused/re spondent Alia Bux exhorted his compan ions where upon all the accused/respond ents, started giving blows with the weap ons they were armed with, on the complain ant, his brothers and nephew. Accused/ respondent Akhtar, fired shot from a pis tol and wounded Shakil (one of the de ceased) and Mobin (one of the injured ). In the incident, Asgar (another deceased) and Jamil Ahmad (another injured) also re ceived injuries of sharp edged weapons. Asgar and Shakil died on the spot. On raising alarm by Jamil Ahmad, persons from near by place reached at the spot where upon accused/respondents ran away towards river Dhela. Leaving the dead bodies of Asgar and Shakil on the spot, Jamil Ahmad along with Mobin went to PS. Kashipur and he got lodged First In formation Report. The said report (Ext A-1) was got scribed by one Anwar Hussain on dictation of Jamil Ahmad (P. W. 2 ). The police registered the crime No. 160 of 1987 again all the eight accused relating to of fences punishable under Section 147, 148,149, 307 and 302 I. P. C. on 13-05-1987, at about% 11:20 a. m. Shri R. S. Lal Sharma (PW. 9), Sub-Inspector, started investigation in the matter. He accompa nied with Kalyan Singh (P. W. 7), another Sub-Inspector, proceeded towards the spot. The dead bodies were taken by the police into their custody and they prepared inquest reports (Ext. A-5 and Ext. A-10), police form No. 13 (Ext A-6 and Ext. A-11), sketch of the dead bodies (Ext. A-7 and Ext. A-12) and the letters (Ext. A-8 and Ext. A-14), requesting the Medical Superintendent, for post mortem examina tion of the dead bodies. Police also col lected the simple soil and blood stained soil from the place of incident and pre pared memorandums (Ext. A-15 and Ext. A-20 ). Meanwhile, on the very day, i. e. on 13-05-1987, injuries on the person of Jamil Ahmad (P. W. 2 ). and Mobin (P. W. 3), were got examined in L. D. Bhatt Civil Hospi tal, Kashipur, at about 12:00 noon, and their injury reports (Ext. A-21 and Ext. A-22) were prepared by Medical Officer on duty. Post mortem examination on the dead bodies of Asgar and Shakil was con ducted on the next day i. e. 14-05-1987, at 10:00 a. m. and 10:30 a. m. respectively by Dr. O. K. Lumba, who prepared the post mortem examination reports (Ext. A-25 and Ext. A-23 ). During investigation, the witnesses were interrogated and accused were arrested. From the possession of accused/respondent Akhtar, a pistol, used in the crime, was recovered. Also, empty shells of cartridges, were recovered from the spot itself by the police, which were sent to Ballistic Expert, who gave its re port (Ext. A-26) supporting the prosecu tion. On completion of investigation, the police submitted charge sheet (Ext. A-35) on 30-05-1987 against all the eight ac cused/respondents, namely Akhtar, Mohd. Umar, Nuru, Rais alias Gabru, Amir Bux, Yamin, Yasin and Alia Bux. The Magistrate, on receipt of the charge sheet, took the cognizance of the case, and after giving necessary copies to the accused as required under Section 207 Cr. P. C. , committed the case to the Court of Sessions, for trial. Learned Sessions Judge, after hearing the prosecution and the defence, framed charge of offences punishable under Section 148 I. P. C. (for unlawful assembly, armed with deadly weapons for commission of murder and voluntarily causing injuries), under Section 302 read with Section 149 I. P. C. (for par ticipating in furtherance of common object of unlawful assembly in commission of murder of Asgar and Shakil), under Sec tion 307 read with Section 149 I. P. C. (for participating in furtherance of common object of unlawful assembly in , attempt ing to commit murder of Mobin) and that of punishable under Section 324 read with Section 149 I. P. C. (for participating in fur therance of common object of unlawful assembly in voluntarily causing hurt to Jamil Ahmad), against accused/respond ents Mohd. Umar, Nuru, Rais alias Gabru, Yamin and Yasin. A separate charge was framed against accused/respondent Amir Bux and Alia Bux with regard to the of fences punishable under Section 147 I. P. C. (for constituting unlawful assembly with common object), under Section 302 read with Section 149 I. P. C. (for participating in furtherance of common object in unlaw ful assembly for commission of murder of Shakil), under Section 307 read with Sec tion 149 I. P. C. (for participating in further ance of common object in unlawful assembly in an attempt to commit murder of Mobin), under Section 302 IRC. read with Section 149 (for participating in fur therance to common object in unlawful assembly in committing murder of Asgar), and under Section 324 read with Section 149 I. P. C. (for participating in furtherance to common object of unlawful assembly in voluntarily causing hurt to Jamil Ahmad ). A separate charge was framed against accused Akhtar, relating to of fences punishable under Section 148 I. P. C. (for being member of unlawful assembly, armed with deadly weapon with others in furtherance of common object to commit murder of Asgar), under Section 302 I. P. C. (for committing murder of Shakil), under Section 307 I. P. C. (for attempting to com mit murder of Mobin), Section 324 with Section 149 I. P. C. (for participating in fur therance of common object of unlawful as sembly in voluntarily causing hurt with deadly weapon to Jamil Ahmad) and un der Section 302 read with Section 149 I. P. C. (for participating in furtherance of common object in unlawful assembly in committing murder of Asgar ). All the ac cused pleaded not guilty and claimed to be tried.
(3.) THEREAFTER prosecution got exam ined P. W. 1 Head Constable Arjun Singh, who proved First Information Report (Ext. A-l), P. W. 2 Jamil Ahmad (injured eye wit ness and the informant), PW. 3 Mobin (in jured eye witness), P. W. 4 Radhey Shyam (driver of tractor- declared hostile), P. W. 5 Mohd. Umar (declared hostile), P. W. 6 Hamid Ullah (witness of recovery of pistorl from Akhtar- declared hostile), P. W. 7 Kalyan Singh, Sub-Inspector (witness of in quest report), P. W. 8 Vijay Singh (witness of recovery of pistol from Akhtar- declared hostile) and P. W. 9 R. S. Lal Sharma (In vestigating Officer ). The Medical Officers, who examined the injuries on the person of Jamil Ahmad and Mobin and the one who conducted post mortem examination, were not examined, as the defence coun sel admitted the genuineness of the docu ments prepared by them. The entire prosecution evidence- oral and documentary, was put to the accused under Section 313 of Cr. P. C. in reply to which they alleged the same to be false. The accused (present respondents) alleged that they were falsely implicated on account of enmity due to land dispute. No oral evidence is adduced from the side of the defence but documents Ext\b-l (copy of judgment and order dated 30-10-1986, passed by Assistant Collector, Kashipur in revenue case No. 221 54 of 1985-86 between the parties), Ext. B-2 (copy of statement of one Kaluwa, re corded on 09-10-1986 by the revenue au thorities), Ext. B-3 (copy of order dated 30-11-1985, passed by Munsif, Kashipur on application 9-C and 13-C in civil suit No. 206 of 1985 between the parties), Ext. B-4 (copy of order dated 19-05-1986, passed by Additional Civil Judge, Nainital, in civil appeal No. 84 of 1985, between the par ties), were filed. The trial court after hearing the par ties opined that the charges framed against the accused/respondents are not proved be yond reasonable doubt and acquitted them of all the charges framed against them vide its judgment and order dated 20-06-1989, passed in Sessions Trial No. 283 of 1987. Aggrieved by said judgment and order, this appeal was preferred by State, before Allahabad High Court on 29-09-1989, the last day of limitation. Leave was granted by said court under Section 378 (3) Cr. P. C. on 21-05-1992 and the us admit ted. This Court received the appeal by transfer under Section 35 of U. P Reor ganisation Act, 2000, for its disposal.;