PRASHANT KUMAR MISHRA, J.

1. Four accused persons namely, Mohd. Yunus (A1), Mohd. Jamil (A2), Ghasita (A3) and Akhtar Hussain (A4) were sent for trial for the same incident which occurred on 09.01.1999 causing death of Akbar (deceased) and injuries to Digitally signed by Deepak Singh Date: 2024.01.12 15:29:56 IST Reason:

Signature Not Verified Deenu (PW-1), Ahmad (PW-2) and Harun. Initially, accused nos. 1, 2 and 3 were tried in Sessions Case No. 12 of 1999 arising from FIR No. 10 dated 09.01.1999 of Police Station Nuh, Haryana in which they were convicted for offences under Sections 302 and 323 read with Section 34 of the Indian Penal Code, 18601 while acquitting them of the charge under Section 325 read with Section 34 of the IPC. During the pendency of the trial against first three accused, the prosecution moved an application under Section 319 of the Code of Criminal Procedure, 19732 which was allowed by the Trial Court on 02.11.1999. While the first trial was decided on 25.07.2001, when accused Akhtar Hussain was absconding, he was tried separately after he surrendered, and charge sheet was submitted on 01.04.2003. The trial against Akhtar Hussain in Sessions Case No. 112 of 1999 dated 29.08.2003 was decided on 05.10.2004 in which he was acquitted of the charges under Sections 302, 323, 325 read with Section 34 of the IPC.

2. Akhtar Hussain’s (A4) acquittal was challenged before the High Court which came to be dismissed against which no further appeal has been preferred either by the complainant or by the State.

1 For short ‘IPC’ 2 For short ‘Cr.P.C.’

3. Under the impugned judgment in Criminal Appeal No.

1308 of 2012 the High Court has passed the common order disposing of Criminal Appeal No. 437-DB of 2001 and Criminal Revision No. 418 of 2005. The criminal appeal was preferred by Mohd. Yunus, Mohd. Jamil and Ghasita challenging their conviction by the Trial Court whereas criminal revision was preferred by the complainant-Deenu challenging the judgment of acquittal passed in favour of accused-Akhtar Hussain. The High Court dismissed the appeal qua accused-Ghasita and Mohd. Jamil whereas the appeal preferred by accused Mohd. Yunus was allowed in part acquitting him of the charges under Section 302 read with Section 34 of the IPC but maintained his conviction for offence under Section 323 read with Section 34 IPC and sentenced him for the period already undergone.

4. Ghasita (A3) has died during the pendency of this appeal. Resultantly, at present, out of the four accused persons, Mohd. Yunus (A1) stands convicted only under Section 323 of the IPC, Ghasita (A3) has died, and Akhtar Hussain (A4) is acquitted by the Trial Court and affirmed by the High Court against which there is no further appeal. Thus, out of four accused persons, only Mohd. Jamil (A2) stands convicted under Sections 302 and 323 read with Section 34 IPC.

5. Criminal Appeal No. 1307 of 2012 has been preferred by the State challenging the judgment of the High Court acquitting Mohd. Yunus (A1) from the charges under Section 302 of the IPC while convicting him under Section 323 of the IPC.

6. The prosecution case, in brief, is that at about 09.10

p.m on 09.01.1999, the informant-Deenu (PW1) along with his brother Akbar (deceased) and Harun (son of PW1) were sitting together warming themselves in front of fire. When the deceased was going to his house, Ghasita (A3), his son Akhtar Hussain (A4) armed with Pharsa, Mohd. Jamil (A2) armed with Kulhari and Mohd. Yunus (A1) armed with lathi reached there to teach a lesson in connection with a fight broke between them a day before. As per the FIR, Ghasita (A3) and Akhtar Hussain (A4) gave Pharsa blows on the head of the deceased. Akhtar Hussain (A4) gave another blow whereas Jamil (A2) also inflicted injuries by Kulhari on the head of the deceased. When the