B.N.Katju, J. - (1.) ISHRAT alias Nanhey Saheb has filed this appeal against the judgment of III Temporary Civil and Sessions Judge, Bareilly dated 20-9- 1973 passed in Sessions Trial No. 207 of 1971 convicting him under Sections 324 and 452 IPC and releasing him on probation of good conduct on entering into a bond of Rs. 1000/- with two sureties each in the like amount to appear and receive sentence when called upon to do so within a period of one year and in the meantime to keep the peace and be of good behaviour.
(2.) FAROOQ Mian (PW 1) is the son of Smt. Kamini Begum (PW 5) and Kumari Shahjahan Begum (PW 2) and Kumari Afsar Jahan Begum (PW 4) are the daughters of Smt. Kamini Begum (PW 5) . Ail these witnesses reside in the same house in mohalla Jasholi in the city of Bareilly. Ishrat alias Nanhey Saheb appellant and Nusrat co-accused are the sons of Shahzadey Ali. Arshad All and Taj Mian co-accused are the sons of Irshad Ali co-accused. The appellant and these four co-accused are related to each other and are residents of Mohalla Zakhira in the city of Bareilly in which Rafiq co-accused also resides. The case of the prosecution is that prior to the occurrence one Chhotey Mian had kidnapped and raped Kumari Afsar Jahan Begum (PW 4). The case regarding that incident was instituted against chhotey Mian under Section 363, 368 and 376 IPO which was committed to the court of Sessions and was pending at the time of the incident. chhotey Mian, the appellant and the five co-accused, namely, Nusrat, Irshad Ali, Arshad Ali, Taj Mian and Rafiq wanted that Kumari Afsar Jahan Begum (PW 4) should not depose, against chhotey Mian in that case and the parties should enter into a compromise. But Kumari Afsar Jahan Begum (PW 4) appeared in the committing court and gave evidence against Chhotey Mian which annoyed chhotey Mian, the appellant and the five co-accused and they extended threats to Km. Afsar Jahan Begum (PW 4) and her brother Farooq Mian (PW 1). Report (Ext. Ka-1) was lodged by Farooq Mian (PW 1) under Section 506 IPC against the appellant Irshad Ali co-accused and others on 1-11- 1969 at Police Station Killa. Report (Ext. Ka-2) was lodged by Farooq Mian (PW 1) under Sections 323 and 506 IPC against Irshad Ali, Rafiq and Taj Mian co-accused and others on 13-11-1969 at Police Station Killa and report (Ext. Ka. 4 was sent by Farooq Mian (PW 1) on 8-12-1969 to the Superintendent of Police, Bareilly against the appellant, Irshad Ali, Taj Mian and Rafiq co- accused and others in which apprehension of danger to his life as well as to the lives of his family members was expressed by him. On 21-12-1969 at about 3 P. M. while Farooq Mian (PW 1) was eating his lunch on the first floor of his house and Kumari Afsar Jahan Begum (PW 4) her sister Kumari Shahjahan Begum (PW 2) and their mother Smt. Kamini Begum (PW 5) were sitting in the court-yard of their house the appellant armed with a knife along with the five co-accused came there and asked Farooq Mian (PW 1) to come out. When Kumari Afsar Jahan Begum (PW 4) objected to their entering inside their house the appellant said "aaj isey hi khatam kiye deta hoon" and gave her a blow on her back with his knife. On her alarm Kumari Shahjahan Begum (PW 2) and Smt. Kamini Begum (PW 5) came to save her and the five co-accused assaulted them with bricks and shoes. Farooq Mian (PW 1) and Munney, Asfaq and Shamim, who were also present in the house then challenged the appellant and the co-accused and they ran away.
(3.) THE first information report was lodged by Kumari Shahjahan Begum (PW 2) at police station Killa at 3.45 P. M on the same day (21-12-1969) the distance of the police station from the place of occurrence being six furlongs. Kumari Afsar Jahan Begum (PW 4) was taken to the Hospital by Farooq Mian (PW 1) on a rickshaw and her injury was examined by Dr. Ram Singh (PW 9) at 3.50 P.M. on the same day (21-12-1969) and the under mentioned injury was found on her person: (1) Punctured wound 2\ cm. x 0.75 cm. X depth not probed on the back of left chest 9 cm. outer to the middle line 15 cm. above the level of iliac crest, the wound was oblique with clean cut margins and was bleeding.;