1. This appeal, preferred under section 378 (3) of Code of Criminal Procedure, 1973 (for short Cr.P.C)is directed against judgment and order dated 06.12.1996, passed by Additional Sessions Judge/Special Judge, E.C. Act, Dehradun, in Sessions Trial No. 138 of 1995, whereby said court has acquitted the respondents Gulfam (since deceased), Abbas Ali, and Babu @ Irfan Ali from the charge of offences punishable under section 307, 324, 506 Indian Penal Code, 1860 (for short IPC).
2. Heard learned counsel for the parties and perused the lower court record.
3. Prosecution story in brief is that on 20.04.1994, women from families of P.W.1 Liyakat Ali (complainant) and accused Mushtaq Ahmad (since deceased), in village Jhabrawala, quarreled over some issue on which P.W1 Liyakat Ali went to police station and got lodged report of said incident. When he came back to the village accused Mushtaq Ahmad (since deceased), Gulfam (since deceased), Babu @ Irfan Ali, and Abbas armed with knives came to the house of P.W.1 Liyakat Ali at about 8:40 P.M., and all the four assaulted his brothers P.W.2 Neena and Ashraf with knives. In the incident complainant's nephew Adibur Rahman (P.W4) also suffered knife injuries. According to prosecution case, there was electric light in the house of Liyakat Ali. At the time of incident (P.W.5) Asgar Ali and some other persons also come at the spot. The injured were taken to hospital at Doiwala and thereafter to Doon Hospital. P.W.1 Liyakat Ali got lodged first information report (Ex. A1) at 10:30 P.M., on the very day which was registered at crime no. 65 of 1991, relating to offence punishable under section 307 IPC against all the four accused Mushtaq, Gulfam (since deceased), Babu and Abbas. P.W.7 Sub-Inspector Kanchan Singh investigated the crime. After interrogating the witnesses , collecting injury reports and preparation of site plan, the Investigating officer submitted charge sheet (Ex. A8) against the three accused namely Mushtaq, Abbas Ali, and Babu in respect of offences punishable under section 307, 324, and 506 IPC. A separate charge sheet was filed against accused Gulfam (since deceased).
4. The Magistrate, on receipt of the charge sheets, appears to have committed the case to the court of sessions for trial after giving necessary copies to the accused as required under section 207 Cr.P.C. The trial court, on 15.01.1992, after hearing the parties, framed charge of offences punishable under section 307, 324, and 506 IPC against all the four accused namely Mushtaq, Gulfam (since deceased), Babu @ Irfan Ali and Abbas who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Liyakat Ali (complainant) and P.W.2 Neena (injured), P.W.3 Dr. D.M. Kala, P.W.4 Adibur Rahman, P.W.5 Asgar Ali, P.W.6 Sub-Inspector Ranjeet Singh, who arrested the accused and recovered knives, P.W.7 Sub-Inspector Kanchan Singh, who investigated the crime, and P.W.8 Constable Suresh Kumar, who registered the crime and made entry in general diary. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which they alleged same to be false. It is also stated by them that they have been falsely implicated. No evidence in defence was adduced. The trial court after hearing the parties found that the prosecution has failed to prove the charge in respect of offences punishable under section 307, 324, 506 IPC, as against the accused Gulfam (since deceased), Abbas, and Babu @ Irfan Ali and acquitted them from the charge. As to the accused Mushtaq he died during trial as such,his case stood abated during trial. Aggrieved by said judgment and order dated 06.12.1996, passed by Additional Sessions Jude/Special Judge, E.C. Act, Dehradun,in Sessions Trial No. 138 of 1995 whereby accused/respondents are acquitted, this appeal is filed by the State, before Allahabad High Court on 05.04.1997, from where it is received by transfer under section 35 of U.P. Reorganization Act, 2000 (Central Act, 29 of 2000) for its disposal. During the period this appeal, respondent no. 1 Gulfam (since deceased) also expired and appeal as against him stood abated during the period of this appeal.
5. Before further discussion this Court thinks relevant to mention here injuries suffered to P.W.2 Neena and P.W.4 Adibur Rahman, which are recorded by Dr. D.M. Kala, of Doon Hospital on 20.04.1991, at about 9:30 P.M. Injury recorded by said medical officer on the person of Neena (P.w.2) which are mentioned in Ex. A3 are being reproduced as below:-
Incised wound 1cmx2.5cm. Depth
not probed of middle of back 17cm below root of neck, oozing present. The injuries found on person of Adibur Rahman (P.W.4) by P.W.3 Dr. D.M. Kala, are mentioned in (Ex. A2) which are as under:- (i) Incised wound 2cmx1cm right side of chest. Depth not probed. 3cm below right
(ii) Incised wound 2cmx1cm . Depth not probed.On the left side of chest. 13Cm below left nipple, oozing present. (iii) Incised wound 2cm x 3cm, subcutineous clip on left side of chest. 2cmabove injury no.2. Oozing present.
(iv) Incised wound 2cmx1cm. Bone deep on middle of back of left forearm. Oozing present.
6. P.W.1 Liyakat Ali (complainant) has stated that on 20.04.1991, at about 3-4 P.M., his daughter, and daughter of accused Mushtaq (since deceased) quarreled over filling water from a tap. According to this witness he went to report the matter at the police station. When he came back, at about 8:40 accused Mushtaq (since deceased), Gulfam (since deceased), Babu @ Irfan Ali and Abbas armed with knives came to his house and assaulted his brother Neena (P.W.2) and Ashraf (not examined) and P.W.4 Adibur Rahman. P.W.1 Liyakat Ali has further stated that he took three injured to Doiwala Hospital and thereafter he got lodged first information report (Ex. A1).
7. P.W.2 Neena, has corroborated the testimony of P.W.1 Liyakat Ali. Similarly P.W.4 Adibur Rahman has also supported the prosecution case.
8. The trial court could have believed the injured witnesses and it was possible for the trial court to record the conviction on the basis of the above evidence. However, the trial court have taken note of the fact that according to prosecution story one Ashraf was also injured but neither his medical report is produced nor he was examined, which creates doubt as to the manner the incident is said to have been taken place. Also, while appreciating the evidence on record the trial court has doubted prosecution story on the ground that eye witnesses failed to specify as to which of the accused assaulted whom in the incident. They have simply stated that all the four assaulted. It is pertinent to mention here that P.W.2 Neena suffered only one injury and he should have been able to disclose as to which of the four accused gave that blow to him. Apart from this, the trial court found that the place of incident as stated by the eye witnesses did not match the place mentioned in the site plan by the Investigating Officer. Though, the clothes are said to have been found stained with blood but no blood stained clothes were produced by the prosecution. On behalf of defence, it is also pointed out that if the injured were first taken to Doiwala Hospital as stated by P.W.1 Liyakat Ali there should have been medical injury reports given by said hospital. Said medical report are not on the record.
9. In the above circumstances, taking note of the facts mentioned in the preceding para, the trial court has taken the view that it cannot be said if the charge stood proved as against the accused beyond reasonable doubt. Since, trial court has taken a view which cannot be said to be perverse or against the evidence on record. In such a case where two views are possible, this Court is not inclined to reverse the finding recorded by the trial court.
10. Therefore, this appeal is dismissed. Lower court record be sent back.