[Per : Hon’ble Dharam Veer, J.]

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 Jamaludin & Ors., whereby the learned Additional Sessions Judge has convicted the appellant no. 6 Mukhtiyar @ Gola S/o Jamaludin under Section 148, 307/149, 323/149, 324/149 & 506 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo one year’s R.I. u/s 148 IPC, five years’ R.I. u/s 307/149 IPC along with a fine of Rs. 1000/- and in default, to undergo additional six months’ imprisonment, six months’ R.I. u/s 323/149 IPC, one year’s R.I. u/s 324/149 IPC and one year’s R.I. u/s 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 Section 147, 307/149, 323/149, 324/149 & 506 IPC and each of them were sentenced to undergo one year’s R.I. u/s 147 IPC, five year’s R.I. u/s 307/149 IPC along with a fine of Rs. 1000/- each and in default, to undergo additional six months’ imprisonment, six months’ R.I. u/s 323/149 IPC, one year’s R.I. u/s 324/149 IPC and one year’s R.I. u/s 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 no. 3 & 4 was abated vide order dated 22.5.2009 passed by this Court.

3. In brief, the prosecution case is that PW2 Hakumullah lodged an FIR Ex. Ka-1 with PS Jwalapur on 14.10.1983 with the averments that accused appellants Mukhtiyar @ Gola S/o Jamaludin, Akhtar @ Kalwa and their companions were involved in illegal activities near the mosque. His son Irshad 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 13.10.1983 at about 8.30 p.m. his son Irshad 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. Irshad Ali fell down in a pool of blood. On hearing the noise, when the complainant, his wife Sayeedan (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, Haridwar, 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.

4. 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 exmained by PW8 Dr. S.C. Singhal at Harmilap Hospital, Haridwar on 13.10.1983 at 10.15 pm, who prepared the medical e