DHARAM VEER,J. - (1.) THIS appeal, pre­ferred by the appellants under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C), is directed against the judgment and order dated 5.8.1994 passed by the Additional Sessions Judge, Roorkee in Sessions Trial No. 555/1985, State of U.P. v. Mukhtiyar @ Gola S/o Jamaluddin and others, whereby the learned Additional Sessions Judge has convicted the appellant No. 6 Mukhtiyar @ Gola S/o Jamaluddin under section 148, 307/149, 323/149, 324/149 and 506 of In­dian Penal Code, 1860 (for short, IPC) and sentenced him to undergo one year's R.I. under section 148 IPC, five years' R.I. un­der section 307/149 IPC along with a fine of Rs. 1000/- and in default, to undergo additional six months' imprisonment, six months' R.I. under section 323/149 IPC, one year's R.I. under section 324/149 IPC and one year's R.I. under section 506 IPC. All the sentences were directed to be run concurrently. Appellants/accused Mukhti­yar S/o Ibrahim, Israr, Yakub, Idrish and Akhter, each of them were convicted under sections 147, 307/149, 323/149, 324/149 and 506 IPC and each of them were sen­tenced to undergo one year's R.I. under section 147 IPC, five years' R.I. under sec­tion 307/149 IPC along with a fine of Rs. WOO/- each and in default, to undergo ad­ditional six months' imprisonment, six months' R.I. under section 323/149 IPC, one year's R.I. under section 324/149 IPC and one year's R.I. under section 506 IPC. All the sentences were directed to be run concurrently.
(2.) APPELLANT No. 3 Yakub and appel­lant No. 4 Idrish died during the pendency of the appeal and hence, appeal of the ap­pellants Nos. 3 and 4 was abated vide order dated 22.5.2009 passed by this Court. In brief, the prosecution case is that PW2 Hakimullah lodged an FIR Ex. Ka-1 with PS Jwalapur on 14.10.1983 with the averments that accused-appellants Muk­htiyar @ Gola S/o Jamaluddin, Akhtar @ Kalwa and their companions were in­volved in illegal activities near the mosque. His son Irsad Ali (PW2) tried several times to make them understand not to do so and when they did not pay any heed to his re­quest, he complained with the Railway Po­lice Chowki on 12.10.1983 with the result that the accused-appellants became angry with him. On 13.10.1083 at about 8.30 pm, his son Irsad Ali was returning to his home from Jwalapur on a scooter after finishing his routine work. When he was about to enter into the Mohalla, accused-appellants came across to him on the main road and said that let us kill him, alleging him to be the kingpin of the complainants. On this, accused-appellant Mukhtiyar @ Gola stabbed him in the stomach with a knife. Irsad Ali fell down in a pool of blood. On hearing the noise, when the complainant, his wife Sayedan (PW6) and younger son Nisar Ahmad (PW3) came for the rescue of Irshad Ali, then the accused-appellants also assaulted them with the knife and lathis and they received many injuries in this in­cident. When people started gathering there, the accused-appellants ran away from the place of occurrence holding out a threat that they would not leave Irshad Ali alive if he would not die this time. This incident was witnessed by Iqbal Ahmad (PW5), Sayed Ahmad, etc. Injured Irshad Ali was taken to Harmilap Hospital, Ha-ridwar, where he was given the first aid and thereafter advised to approach another hospital. After that he was admitted to BHEL Hospital, Ranipur, where he was operated upon, but still his life was not out of danger. Thereafter the complainant, his wife Sayedan and his younger son Nisar Ahmad, who were also injured, came to the police station and lodged the report of this incident with the aforesaid averments.
(3.) ON the basis of the FIR Ex. Ka-1, chick FIR Ex. Ka-8 was prepared by Head Moharrir Jagroshan. He also made the nec­essary entries in the GD. Copy of GD is Ex. Ka-9. Investigation of this case was en­trusted to S.I. Shishupal Singh. Injured Ir­shad Ali (PW2) was medically examined by PW8 Dr. S.C. Singhal at Harmilap Hospital, Haridwar on 13.10.1983 at 10.15 pm, who prepared the medical examination report Ex. Ka-10. Thereafter the injured Irshad Ali was admitted to BHEL Hospital, Ranipur where he was medically examined by PW7 Dr. D.K Tripathi, who prepared the medical examination report Ex. Ka-5. Injured Nisar Ahmad (PW3) was medically examined by PW4 Dr. G.K. Singhal at State Dispensary, Jwalapur on 14.10.1983 at 2.45 am, who prepared the medical examination report Ex. Ka-4. PW6 Sayedan was also medically examined by PW4 Dr. G.K. Singhal on the same day at 2.55 a.m., who also prepared the medical examination re­port Ex. Ka-3. During the course of investi­gation, the bloodstained clothes were taken into possession by the I.O. and Fard Ex. Ka-2 was prepared. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan Ex. Ka-7. The I.O. recorded the statements of the witnesses during the course of inves­tigation and after completing the investiga­tion, he filed the charge-sheet Ex. Ka-6 against the accused-appellants.;