Rabia vs Yunus And Ors

The instant appeal has been preferred by the appellant victim Rabia seeking to assail the judgment dated 27.3.2019 passed by the learned Sessions

Judge, Pratapgarh in Sessions Case No.140/2016 whereby the respondents No.2 to 7 were acquitted of the charges under Sections 148, 302 and 149

I.P.C.

The appeal is delayed by 60 days.

Shri Bharat Shrimali Advocate has filed power on behalf of the respondent.

Considering the over all facts and circumstances as available on record, the application under Section 5 of the Limitation Act deserves to be and is

hereby allowed and the delay occasioned in filing of the appeal is condoned.

We have heard the matter on admission.

Upon a perusal of the of the impugned judgment, it is clear that the F.I.R. (Ex.P15) was lodged by Mubarik the complainant with an allegation that

Manmal came to his house on 12.7.2016 at about 3 O’clock and told him that his brother Mukhtiyar Hussain has been brutally assaulted and

chopped up by the sons of Salim Chacha and that he was lying near the weighbridge. Upon this, the complainant, accompanied with Mukhtiyar’s

wife Rabiya the appellant herein went to the spot and saw Mukhtiyar lying unconscious with numerous wounds on his hands and legs. The persons

present at the spot told the complainant that Mukhtiyar had been beaten by Salim Chacha’s sons with axes etc. Mukhtiyar was taken to the Chhoti

Sadri Hospital from where he was referred to Udaipur. The assault took place because of old enmity. Mukhtiyar regained senses at the hospital and

told them that Salim Chacha’s sons Soaib, Chhota, his nephews Yunus and a man named Babu had assaulted him with axes. On the basis of the

report aforesaid, F.I.R. (Ex.P16) was registered at the Police Station Chhoti Sadri and investigation was commenced. The respondents were arrested

and charge-sheet came to be filed against them for the offences under Sections 148, 302 and 149 I.P.C. The case was committed to the court of

Sessions Judge, Pratapgarh, who framed charges against the accused for these offences. The accused pleaded not guilty and claimed trial. The

prosecution examined as many as 21 witnesses and exhibited numerous documents to prove its case.

It may be stated here that the first informant Mubarik P.W.8, the so-called eye-witness Manmal P.W.6, Murad Hussain P.W.2, Ishwar P.W.4,

Balram P.W.7, Hasmat @ Benaki P.W.10, Shehnaz P.W.11, Shakir P.W.12, Pawan P.W.13, Sattar P.W.14 and Ruksana P.W.15 did not support the

prosecution case in entirety and were declared hostile. Rabiya P.W.9 the appellant herein is the wife of Mukhtiyar. She stated in her evidence that

someone informed her that Mukhtiyar was lying at the weighbridge on which, she went there with her brother in law. Mukhtiyar was injured and was

lying unconscious. He was taken to the hospital but he did not tell her anything. She could not state as to how Mukhtiyar received the injury. Even

Rabiya was declared hostile by the prosecution. The evidence of the other witnesses is formal in nature. The witness Dr.Ritesh Jain P.W.5 was a

member of the Medical Board which conducted autopsy upon the dead body of Mukhtiyar. He admitted in cross-examination that the injuries noticed

on the body of the deceased were all caused by blunt weapon and that such injuries were possible due to collision with a heavy moving vehicle. Thus,

neither any of the eye-witnesses gave evidence implicating the accused in the case nor does the medical evidence support the prosecution theory that

the deceased was assaulted by the accused with axes. Some weapons were recovered by the Investigating Officer in furtherance of the information

provided by the accused under Section 27 of the Evidnece Act but as has been noted by the trial court at para 38 of its judgment, the FSL report was

not produced and exhibited by the prosecution before the trial court. Therefore, we are of the firm opinion that there is no evidence worth the name on

the entire record of the case, which can be considered even remotely sufficient so as to link the accused with the alleged offences.

We find no infirmity in the impugned judgment either factual or legal which can warrant admission of this appeal.

As a consequence, the appeal fails and is hereby rejected as being devoid of merit.