IMPORTANT POINT
The appellate court upheld the trial court's acquittal, emphasizing the presumption of innocence and the necessity for compelling evidence to overturn such decisions.

JUDGMENT :

Sangeeta Chandra, J.

1. Heard Shri Pawan Kumar Mishra, learned A.G.A.-I for the State-appellant, Shri S. Malik-E-Ashtar Rizvi, learned counsel for the respondent nos.1 and 3 and perused the material available on record.

2. By means of the present government appeal, after seeking leave to appeal under Section 378 (3) of Cr.P.C., the State has assailed the impugned judgment and order dated 13.04.1993 passed by IInd Additional Sessions Judge, Barabanki in Sessions Trial No.120 of 1989 as well as Sessions Trial No.29 of 1991, under Sections 147 and 302/149 of the Indian Penal Code [hereinafter referred to as “I.P.C.”], Police Station Mawai, District Barabanki, whereby the accused/ respondents were acquitted of the charges under Sections 147 and 302/149 I.P.C.

3. From a perusal of record, it transpires that the instant Government Appeal was filed against six accused-respondents, namely, Ishaq, Ishtiaq, Rahan, Nasiuddin, Saleem and Ishtiaq Khan, out of which, respondent nos.2, 4, 5 and 6, namely, Istiaq, Nasiruddin, Saleem and Ishtiaq Khan, have died. The instant appeal in respect of respondent nos., 2, 4, 5 and 6 has already been abated. Therefore, the appeal survives only with regard to the respondent nos.1 and 3, namely, Ishaq and Rehan Khan, respectively.

4. The case of the prosecution in nutshell is that on 13.06.1987 at about 6:45 P.M., the deceased, Mohammad Arif Khan along with one Aiyoob s/o Latif was coming back from his tubewell. As soon as they reached near the dry Naala of Village Mawai, the accused-respondents, namely, Ishaq and Ishtiaq, sons of Jannu Nanihar, Rehan and Ishtiaq Khan, sons of Iqbal Khan, and Nasiruddin appeared from behind a bush carrying lathis and dandas in their hands and, committed murderous assault on Arif Khan on the exhorting of the accused-respondent, Saleem. On alarm being raised by Aiyoob, Khalil Pathan, Newaz, Phalau and other villagers reached the place of incident, who saw the assailants. Arif Khan fell down after receiving a number of injuries. On being challenged by the witnesses, the assailants ran away towards the Eidgah. The informant, Mohammed Rashid Khan, S/o Arif Khan also reached the crime scene. The witnesses and the deceased, Arif Khan told him about the occurrence. He took Arif Khan on a cot to the grove of one Imam Ali, where on the basis of details given by injured Arif, Rashid Khan dictated the F.I.R. to his younger brother. The informant then reached the Police Station Mawai along with other villagers carrying injured Arif Khan on a cot and got an first information report, Ext. Ka-6 lodged on the basis of written report, Ext. Ka-1.

5. On the basis of the aforesaid written report, Ext. Ka-1, first information report as Case Crime No.52 of 1987, under Sections 147, 323, 307 I.P.C. came to be registered against the accused-respondents at Police Station Mawai, District Barabanki.

6. P.W.-5, Dr. P. K. Tiwari, the In-charge Medical Officer, Primary Health Centre, Ramsanehi Ghat, Barabanki had examined the deceased, Arif Khan at about 10:30 P.M. on 13.06.1987, when Arif Khan was alive. The following injuries described by P.W.-5, Dr. P. K. Tiwari were found on the body of the deceased, Arif Khan :-