This appeal has been directed against the judgment and order dated 09. 03. 1990 passed by learned IVth Ad ditional Sessions Judge, Nainital in Sessions Trial No. 300 of 1989, whereby the accused/appellants have been convicted & sentenced to undergo rigorous impris onment for six months u/s 147 Indian Panel Code, 1860 (for brevity as I. P. C.), three months u/s 323 I. P. C. and three years u/s 325 and a fine of Rs. 2, 000/- each. It was further directed that in de fault of payment of fine, the accused/appellants would further undergo impris onment for six months each. It was fur ther directed that all the sentences would run concurrently.

2. Brief facts of the case as emerges from the record are that on 02/08/1988 at about 8:00 a. m. , the informant Babu and his father Budha were going to look after their field. When they reached in front of the house of the accused/appel lant Hanif, the accused Akhlakh Ahmad who was holding a gun in his hand stated to other accused/appellants who were holding lathies in their hands that the injured Budha did not cast vote in his favour in the election. The accused Akhlakh Ahmad exhorted all of the accused/appellants to kill them. Thereupon, the accused/appellants started wielding lathies which they were holding on Budha. Due to fear, the informant Babu, son of injured Budha fled away from the place of occurrence. The said incident was witnessed by Nazir Ahmad and Shakil Ahmad. The injured Budha sustained injuries on his person. Thereaf ter, he was taken to police station from where he was taken to the hospital for medical examination as well as treat ment. A case was registered by the in formant Babu against the accused/ap pellants and co-accused Akhlakh Ahmad. The medical examination of the injured Budha was conducted by the Medical Officer on 02/08/1988 at about 11:10 a. m. in P. H. C. Bajpur. After com pleting the investigation, the Investigat ing Officer submitted the chargesheet against the accused persons before the court concerned.

3. After submission of chargesheet, the accused persons were committed to the court of Sessions for trial and the trial court framed charges against the accused persons. The accused persons denied the charges levelled against them and claimed to be tried.

4. The prosecution in support of its case examined Babu PW1. He is the in formant and son of the injured Budha. Budha PW2 is the injured witness. Shri Prithivi Singh PW3 and Shri Ramvir Prasad PW4 are the Investigating offic ers of this case. Firstly, Shri Prithivi Singh PW3 has investigated the matter and later on, the investigation was en trusted to Shri Ramvir Prasad PW4. Shri Ramvir Prasad PW4 submitted the chargesheet against the accused per sons. Shri T. P. Sharma PW5 is the Medical Officer who has examined the injuries on the person of injured Budha PW2. Shri Hari Om PW6, is the doctor who conducted the X-ray on the inju ries of the injured.

5. The accused persons were exam ined u/s 313 Cr. P. C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case due to enmity. They have further stated that they did not cause any injury to the injured Budha PW2.

6. The learned Addl. Sessions Judge on appreciation of the evidence held accused/appellants guilty to the offences charged against them and convicted & sentenced them as mentioned above. However, the learned trial court acquit ted the accused Akhlakh Ahmad for the charges levelled against him.

7. I have heard Mr. H. C. Pandey, Advocate with Syed Naddim, Advocate for the accused/appellants; Mr. Prabhakar Joshi, Brief Holder for the respondent/state; and perused the record.

8. At the outset, it needs to be men tioned that there is no dispute with re gard to the injuries sustained by the in jured Budha PW2 on the date, time and place as suggested by the prosecution. The prosecution in support of its case examined Dr. T. P. Sharma PW5 who conducted the medical examination on the person of the injure

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