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The appellants/ accused persons have filed this appeal u/s

374(2) of CrPC being aggrieved by judgment of conviction and

order of sentence dated 06/04/2000 passed by XIV^th ASJ Indore, in

S.T. no.1/1993 whereby the learned trial court has convicted the

appellants u/s 148, 307 r/w 149 (2 counts), 324 r/w 149 of IPC and

sentenced to rigorous imprisonment for 1 year, 5 years (Two counts)

and fine of Rs. 500/- and 6 months, to each, respectively, with

default stipulation.

2.

It was undisputed fact before the learned trial court that a

cross sessions case no.158/1993, State of Madhya Pradesh Vs.

Ramzan and 5 others, offence punishable u/s 147, 323 r/w 149, 324

r/w 149 and 307 r/w 149 of IPC, was pending against the

complainant party Ramzan (PW/ 11), Abdul Malik (PW/ 1), Abdul

Khaliq (PW/ 2) and witnesses Chand Babu (PW/ 5), Naoshad Khan

(PW/ 6) and Razzaq (PW/ 4). The aforementioned case was decided

on 20/11/1995 by Ist Additional Sessions Judge, Indore, whereby

the complainant party/ accused persons were acquitted.

3.

During pendency of this appeal, appellant no.1/ accused Babu

Khan had died, therefore, this appeal has been abated against him.

4.

Prosecution story in brief is that Abdul Malik (PW/ 1), Abdul

Khaliq (PW/ 2), Chand Babu (PW/ 5) and Naoshad Khan (PW/ 6)

being real brothers and are son of Ramzan (PW/ 11). Complainant

party has an agricultural land situated at Kazi Palasia, P/S Khudail,

Distt- Indore. Near the aforementioned land of complainant, land of

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accused/ Babu Khan (died) is situated. Complainant party had

gotten their land demarcated. Upon demarcation it was found that

some portion of land of the complainant was in possession of the

accused Babu Khan. The complainant party had made a hut in that

said portion of land. On 10/09/1992 at 06:30 PM, complainant

Abdul Malik (PW/ 1), Abdul Khaliq (PW/ 2) and Ramzan (PW/ 11)

were in their hut. Then the accused persons, Babu Khan carrying

Pharsa, Munna carrying Sabbal, Gulam Navi carrying Luhangi with

stick, Bhaiyu carrying Gupti and Arif carrying Lathi, came there and

asked the complainant party as why they had constructed hut in

their piece of land. Complainant party said that piece of land

belongs to them. On this, the accused persons with their respective

weapon gave blows to Abdul Malik (PW/ 1), Abdul Khaliq (PW/ 2)

and Ramzan (PW/ 11) with intent to kill them. The complainant

party sustained injuries in distinct body parts. The incident was seen

by Abdul Razzaq (PW/ 13), Mohammad Mustaq (PW/ 3) and Navi

Hussain. Abdul Malik (PW/ 1) had given intimation to the police

and on the same day at 06:45 PM, SHO L.S. Solanki (PW/ 9) had

recorded an FIR (Ex.P/ 1) at P/S Khudail, Distt- Indore against the

accused persons. The injured persons Ramzan (PW/ 11), Khalik

(PW/ 2) and Malik (PW/ 1) were taken for medical examination. Dr.

A.K. Jain (PW/ 7) examined them on the same day and had given

MLC report (Ex.P/ 21, P/22 & P/23). The injured persons were

admitted for treatment at M.Y. Hospital, Indore by Dr. Sushila

Kumawat (PW/ 8). Dr. Kapil Sahay (PW/ 14) had taken X-ray of

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Abdul Khaliq (PW/ 2), Abdul Malik (PW/ 1) and Ramzan (PW/ 11)

and had given X-ray report (Ex.P/ 38, P/ 39 & P/40, respectively).

After examination it was found that only Abdul Malik (PW/ 1) had

fracture in his clavicle and left index finger.

5.

During investigation on 10/09/1992 SHO L.S. Solanki visited

the place of incident and prepared spot map (Ex.P/ 2) at the instance

of Abdul Malik (PW/ 1) and in presence of witnesses. Halka Patwari

Chogalal (PW/ 16) also prepared a spot map (Ex.P/ 41) and had

given certified copy of revenue map (Ex.P/ 42) and Khasra

Panchshala (Ex.P/ 43), year 1991-92. On 12/09/2022, L.S. Solanki

(PW/ 9) arrested the accused persons Bhaiyu alias Manjur, Gulam

Nabi and Arif vide arrest memo (Ex.P/ 3, P/4 & P/5, respectively).

On 25/09/1992, he also arrested accused Babu Khan and Munna

vide arrest memo (Ex.P/ 6 & P/ 7). He recorded memorandum

statement of accused person Babu Khan, Munna, Arif, Gulam Nabi

and