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2014 DIGILAW 195 (ALL)

Hanif Khan v. State of U. P.

2014-01-16

RAMESH SINHA

body2014
Hon'ble Ramesh Sinha,J. 1.Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Sanjay Vikram Singh, learned counsel for the appellant nos.4, 5 and 7, Sri Viresh Mishra, learned Senior Advocate, assisted by Sri Sandeep Kumar Dubey, learned counsel for the complainant, Sri Manish Dev, learned AGA for the State and perused the record. 2.This appeal has been filed against the judgment and order dated 10.9.1982 passed in Sessions Trial No.86 of 1982 State Vs. Haneef Khan and others by which the appellants have been convicted and sentenced to 6 months R.I. under Section 147 IPC, 4 years R.I. under Section 304 (II) IPC read with Section 149 IPC, and 3 months R.I. under Section 323/149 IPC. 3.As per office report dated 17.11.2013, it has been reported that the C.J.M. vide his report dated 5.12.2012 has reported that the appellant no.1 Haneef Khan, S/o Yusuf Khan, appellant no.2 Khalil Khan, S/o Hanif Khan have died in the year 2009 whereas the appellant no.3 Shakir Khan, S/o Hanif Khan has died in the year 2000 and appellant no.6 Samsuddin, S/o Aliyar Khan has died in the year 1990. Hence in view of the report of the C.J.M, their appeals stands abated. 4.The inter-se relationship as per the accused persons is that out of the accused Khalil Khan and Shakir Khan and Abul Khan are the sons of accused Haneef Khan. Accused Naseem Khan is the son of accused Abul Khan. Thus all these five accused belong to o ne and same family. Though it has been denied but the prosecution case is that the two other accused Shamsuddin and Aslam Khan also belong to the family and goal of accused Haneef Kha. The injured on the prosecution side and the accused admittedly belong to village Usia which is situate at a distance of about four miles to the east of P.S. Dildar Nagar. 5.The prosecution case is that to the north of village habitation Usia at a distance of about 100 lathas there is a chak bearing no.1702 belonging to Zahid Khan. This chak includes old plots nos. 8491 and 8492 and measures 2 biswas 17 dhurs. There is also a primary school in the village having some farm land. The farm land of primary school, which bears plot no.8486 measuring about 8 or 9 biswas in area lies just to the west of the chak of Zahid Khan. This chak includes old plots nos. 8491 and 8492 and measures 2 biswas 17 dhurs. There is also a primary school in the village having some farm land. The farm land of primary school, which bears plot no.8486 measuring about 8 or 9 biswas in area lies just to the west of the chak of Zahid Khan. To the west of plot no.8486 there is a Dinia school which is known as Fazlur Rasool. Tasadduq Khan and Daud Khan allegedly belonging to the family of accused Haneef Khan, are said to be the President and Manager respectively of this institution. The persons interested in Dinia school wanted to grab the farm land as also plot no.1702 belonging to P.W.1 Zahid Khan. 5 or 6 months prior to the incident Zahid Khan had moved an application for the measurement of his plot no.1702 and Daud Khan, the Manager of Dinia School had also moved an application for recording the name of his institution over the farm land plot no.8486. It is said that the said application of Daud Khan had been rejected. It is alleged that at the time of occurrence onion was sown in plot no.1702 belonging to P.W.1 Zahid Khan and on 14.5.1981 around 5.30 p.m., he along with his sons Ishtiyaq, Ajaz, Yunus, Ibrar and one Meraj, cousin brother of his sons was digging out the onions in his said field when he found accused Haneef Khan, Khalil Khan Shakir Khan, Abdul Khan, Nisar Khan, Shamsuddin and Aslam Khan erecting a boundary wall encroaching upon his plot no.1702. He and his son Ishtiyaq went to the accused and forbade them from raising the construction of the wall, whereupon the accused Haneef Khan asked him to keep quiet. On this P.W.1 Zahid Khan told the accused that he had moved an application for measurement of his plot but the accused did not pay any heed to it and reiterated their stand to erect the wall. On this an altercation ensued and all the accused aforesaid fell upon Zahid Khan and Ishtiyaq and started beating. The victims raised an alarm which attracted Yunus Khan, Ibrar Khan, Ajaz Khan and Meraj Khan on the spot who too were attacked and beaten up by the accused. Some other witnesses Nisar, S/o Israil, Nisar son of Razzaq, Dost Mohammad, Subhan Khan, Riaz Khan also arrived on the spot and intervened the matter. The victims raised an alarm which attracted Yunus Khan, Ibrar Khan, Ajaz Khan and Meraj Khan on the spot who too were attacked and beaten up by the accused. Some other witnesses Nisar, S/o Israil, Nisar son of Razzaq, Dost Mohammad, Subhan Khan, Riaz Khan also arrived on the spot and intervened the matter. During the course of incident, one of the witnesses Nisar son of Israil was also beaten up by the accused. The accused Abul Khan gave a lathi blow to Ishtiyaq who fell down on the ground. Out of victims Yunus khan, Ibrar khan and Ajaz Khan are also said to have wielded lathis in exercise of their private defence. The lathis wielded by Ibrar Khan had allegedly a Khanti embedded to it. The accused while running away from the spot, took away Ibrar Khan with them. 6.After the incident P.W.1 Zahid Khan got a written report (Ext. Ka.7) scribed on his dictation by one Jamil Khan on the spot. He along with some of the victims immediately proceeded to the police station Dildar Nagar and made over his written report (Ext. Ka.7) there to P.W.6 Sarnath Misra who was then posted there. Constable Sarnath Misra in his turn drew a chick report (Ext. Ka.23) and registered a case vide G.D.No.33 at 10.15 p.m. On 14.5.1981 (Ext. Ka.24). He also referred the four injured Ajaz, Nisar, Yunus and Ishtiyaq present at the police station for their medical examination and these injured on the same night were medically examined by P.W.4 Dr. R.C. Purohit at State Allopathic Dispensary, Dildar Nagar who found the following injuries on the persons of these injured:- The injured Ajaz Khan was medically examined at 12.30 a.m. On 15.5.1981 whose injuries are as under:- 1. Abrasion 1 cm. x 1 cm. on the occipital region of head left side 12 cm. posterior to the top of left ear, blood clot present. Injury caused by hard and blunt weapon. Simple in nature. Duration Fresh. The injured Nisar Khan was medically examined at 12.45 a.m. On 15.5.1981 and his injuries are as follows:- 1. Abrasion 2 cm. x 1 cm. on the head left side, 4 cm. above the top of left ear. Blood clot present. Injury caused by hard and blunt weapon. Simple in nature. Duration fresh. Simple in nature. Duration Fresh. The injured Nisar Khan was medically examined at 12.45 a.m. On 15.5.1981 and his injuries are as follows:- 1. Abrasion 2 cm. x 1 cm. on the head left side, 4 cm. above the top of left ear. Blood clot present. Injury caused by hard and blunt weapon. Simple in nature. Duration fresh. The injured Yunus Khan was medically examined at 1 a.m. On 15.5.1981 and his injuries are as follows:- 1. Contusion 3 cm. x 2 cm. on left fore-arm placed horizontally on the posterior surface 5 cm. below the left elbow joint, reddish in colour. 2. Contusion 5 cm. x 4 cm. on the dorsal surface of right palm placed horizontally 3 cm. below the right wrist joint, reddish in colour. 3. Abrasion 1 cm. x 0.5 cm. on the dorsal surface of right palm, 1 cm. below the right index finger, blood clot present. Injuries caused by hard and blunt weapon. Duration fresh. Advised X-Ray underneath injury no.2. Injury of Ishtiyaq Khan who was medically examined at 1.20 a.m. On 15.5.1981 are as under:- 1- Contusion 7cm x 2.5 cm on the head left side placed vertically, 7cm above the top of left ear, reddish in colour. 2- Contusion 5cm x 4cm on the dorsal surface of left palm placed horizontally 2cm below the left wrist joint reddish in colour. 3- Abrasion 1cm on the chest left side 3cm below the left nipple, blood clot present. Injuries caused by hard and blunt weapon. Advised X-ray underneath injuries nos. 1 and 2. 4.Ibrar Khan one of the injured who had been taken away by the accused returned back subsequently and he too was referred for his medical examination and was medically examined by Dr.R.C. Purohit on 16.5.1981 at 4.30 p.m. He found the following injuries on his person. Injuries of Ibrar Khan who was medically examined at 4.30 p.m. On 16.5.1981 are as under:- 1. Contusion 4cm x 2cm on the head right side place vertically, 4cm above the top of right ear, bluish in colour. 2- Contusion 3cm x 2cm on the left fore-arm placed horizontally 3cm below the left elbow joint on the posterior surface,bluish in colour. 3- Contusion 4cm x 2.5cm on the back left side placed horizontally 3cm below the lower end of left scapula, bluish in colour. 2- Contusion 3cm x 2cm on the left fore-arm placed horizontally 3cm below the left elbow joint on the posterior surface,bluish in colour. 3- Contusion 4cm x 2.5cm on the back left side placed horizontally 3cm below the lower end of left scapula, bluish in colour. 4- Abrasion 2cm x 2cm on the left knee on the anterior surface just on the knee joint, blood clot present. 5.Abrasion 1 cm. x 1 cm. on the right knee on the anterior surface just on the knee joint, blood clot present. Injuries caused by hard and blunt weapon. Simple in nature. Duration about one and half day. 7.It appears that the injured Ishtiyaq was shifted to Ghazipur and admitted in the district hospital where he was X-rayed for his head injury by P.W.3 Dr. P.C. Srivastava on 16.5.1981. Thereafter while he was still admitted in district hospital, he died at about 1.40 a.m. On the night of 17/18-5-1981. Dr. S.K. Srivastava, who was on duty at that time sent a memo Ext.-9 informing the Kotwali police, from where a Sub-inspectcr was deputed to take up the inquest proceedings. The inquest papers of deceased Ishtiyaq as admitted by the defence Include the inquest report Ext Ka-18, Photo naash Ext.ka-19), Challan Naash Ext. Ka-20) and letter for postmortem (Ext.Ka-21).The dead body of Ishtiyaq in sealed cover was produced by Krishna Ratna, a constable of P.S. Kotwali who has filed his affidavit), before P.W.3 Dr.P.C.Srivastava on 10.5.1981 who on his identification of the deceased held an autopsy at 2 p.m. on 16.5.81 and observed as follows: Age about 20 years. Death had occurred about half day before. Rigor mortis present on both upper and lower extrimities. Eyes closed. Antemortm injuries:- 1. Contusion 7 cm. x 2.5 cm. on left side scalp, vertical direction 7 cm. above left ear. 2. Contusion 5 cm. x 4 cm. on the dorsum of the left palm 2 cm. below left wrist joint. 3. Abrasion 1 cm. x 1 cm. on left side chest 3 cm. below left nipple at 5 O' clock position. On internal examination, he detected fracture of left parietal bone. According to him membranes of the deceased was contused and his brain congested. He found 2 oz. of blood clot present in brain cavity. Stomach of the deceased was found empty and large and small intestines were found full with faecal matters and gas. On internal examination, he detected fracture of left parietal bone. According to him membranes of the deceased was contused and his brain congested. He found 2 oz. of blood clot present in brain cavity. Stomach of the deceased was found empty and large and small intestines were found full with faecal matters and gas. According to him the deceased had died on account of shock and haemorrhage as a result of his antemortem injury no.1. 8.On the registration of this case at P.S. Dildar Nagar, S.I. Ram Bahal Singh, who was then posted at Police Station Dildarnagar on 14.5.1981 was entrusted with the investigation of this case. He immediately swung into action, went to the State Allopathic Dispensary at Dildarnagar and recorded the statements of Ajaz Kha, Ishtiyaq, Yunus Khan and Nisar Khan. Thereafter he proceeded to the spot and inspected it on the same night and prepared site plan (Ext. Ka.16). On 16.5.1981, he met Ibrar and sent him for his medical examination. In the mean time one of the injured Ishtiyaq who had been shifted to Ghazipur and had been admitted in the district hospital died. A memo by way of information of his death was received at P.S. Dildarnagar on 19.5.1981 on the basis of which he got the case altered under Section 304 IPC. On 8.7.1981 he recorded the statements of witnesses Subhan and others. During the course of enquiry he was also made over certain papers about the illegal constructions made by the accused and on completion of the enquiry on 10.7.1981, he presented a charge sheet (Ext. Ka.17) against the accused. 9.Out of the accused Haneef Khan, Khalil Khan and Shakir Khan have pleaded their innocence and attributed their false implication to enmity. Accused Naseem khan has stated that his uncle Abul Khan has launched the cross-case, hence he has been implicated in this case. Accused Shamsuddin's case is that because he intervened in the marpit, he was implicated and he accused Aslam Khan has stated that he on the alarm of Na-seem Khan and Abul Khan alongwith others,was attracted at the door of Zahid khan and when Shamshad and Zahid etc. attacked him and other witnesses, he too had wielded lathi in his defence. Accused Shamsuddin's case is that because he intervened in the marpit, he was implicated and he accused Aslam Khan has stated that he on the alarm of Na-seem Khan and Abul Khan alongwith others,was attracted at the door of Zahid khan and when Shamshad and Zahid etc. attacked him and other witnesses, he too had wielded lathi in his defence. Accused Abul Khan, who is the main architect of the cross version of the incident has pleaded his defence case that when he was erecting the boundary wall of Dinia School, he was attacked by lahtiyaq, Yunus, Ibrar, Shamshad, Husnain, Ashfaq, Nisar and Zahid and the assailants also started demolishing the boundary wall. He has further stated that in order to save himself he ran away on the door of Jokhan Khan, where Ishtiyaq and others started beating him and on his alarm when Jokhan, Shamshul Khan and Aslam came to his rescue, they too were beaten up. According to him Maqbool Khan, Faiyaz Khan and others had intervened in the incident. 10.To prove its case, the prosecution has examined informant P.W.1 Zahid Khan, injured P.W.2 Nisar Khan both witnesses of fact P.W. 3 Dr..P.C. Srivastava, who on 16.5.81 had X-rayed the skull of deceased Ishtiyaq to detect his parietal bone fracture and had held an autopsy at 2 p.m. on l8.5.1981, P.W.4 Dr. R.C. Purohit, who had conducted medical examinations of injured Ajaz, Nisar, Yunus, Ishtiyaq and Ibrar on the prosecution side, P.W.5 S.I. Ram Bahal Singh, the Investigating Officer of this case and P.W.6 Constable Sarnath Misra, a formal witness who prepared the chick report, G.D. and letters etc. Besides the prosecution has also filed/affidavit of a constable Krishna Ratna who while posted in Kotwali on 18.5.198 had taken the dead body of Ishtiyaq to mortuary and hadidentified it before P.W.3 Dr. P.C.Srivastava,. The roles played by all these witnesses have already been stated while narrating the prosecution case. 11.The accused were not acquitted under Section 232 Cr.P.C and were called upon to enter into their defence. The accused besides having filed certain documents have examined D.W.1 Jokhan Khan to prove the cross version of the incident. 12.A postmortem analysis of the evidence would go to show that the factum of occurrence and the day and time of the incident are admitted to the parties. The accused besides having filed certain documents have examined D.W.1 Jokhan Khan to prove the cross version of the incident. 12.A postmortem analysis of the evidence would go to show that the factum of occurrence and the day and time of the incident are admitted to the parties. Both the parties have come up with their respective versions of the incident and according to both them, the occurrence did take place on 14.5.1981 around 5.30 p.m. in village Usia within police circle Dildar Nagar of this district Ghazipur. The difference between the two versions of the incident are in respect of manner of marpit place of occurrence and the number of participants. 13.The prosecution in this case has produced two factual witnesses P.W.1 Zahid Khan and P.W.2 Nisar Khan. Great emphasis has been laid on non-production of an independent witness as also on some developments allegedly made by these witnesses in their evidence. It is a well established law that in a factional fight the evidence of the prosecution witnesses cannot be rejected on the ground of their being interested or having made improvements in their statements. There would be hardly a case where witnesses do not make improvements in their evidence. In factional fights, it is generally the interested witness who come forward and unconnected witnesses are reluctant to give evidence. Thus simply because both these witnesses happen to be interested witnesses and they are found to have made certain improvements here and there will not justify the outright rejection of their evidence. What law emphasises in such cases vis the cautious approach of the court and careful shifting of their evidence to extract the truth. 14.The defence has filed two copies of judgments showing Nisar Khan, P.W.2 having been accused in those cases and on the basis of these documents the defence has tried to impeach the testimony of P.W.2 Nisar Khan who is said to have allegedly denied the fact of his being accused in these cases. It would be seen that Nisar Khan in his cross-examination in para no.8 has denied his having been accused in a case in which police personnel might have been beaten up. He has also denied his having beaten up the Harijans. It would be seen that Nisar Khan in his cross-examination in para no.8 has denied his having been accused in a case in which police personnel might have been beaten up. He has also denied his having beaten up the Harijans. Both these documents hardly go to believe his evidence, as in both these cases Nisar Khan has been acquitted and in none of these cases police personnel are said to be the victims. Both these witnesses have corroborated each other on material particulars of the incident. 15.Besides the evidence of P.W.1, Zahid Khan and P.W.2, Nisar Khan, the two factual witnesses of the occurrence the prosecution has also placed reliance on the statement of Ishtiyaq deceased recorded u/s 161 Cr.P.C by the Investigating Officer. It has been argued that as the statement of Ishtiyaq under Section 161 Cr.P.C. relates to the cases of his death, it is admissible under Section 32 of the Evidence Act. This dying declaration has been assauled by the learned defence counsel on various grounds and unsafe to rely on it for the following reasons. Generally in his statement, no one addressed himself by name but a perusal of statement recorded under Section 161 Cr.P.C. of deceased Ishtiyaq which has been proved by P.W.5 S.I. Ram Bahal Singh, the declarant is found to have addressed himself by name. The relevant extract of the statement under Section 161 Cr.P.C as proved by P.W.5 S.I. Ram Bahal Singh is Ext. Ka.15, in which Ishtiyaq is found to have stated that Ishityaq ko kafi choten hain. A perusal of the case diary also shows that the conduct of the Investigating officer is very dubious and suspicious. He has written in his case diary that he made the inspection of the spot in presence of the informant and the witnesses, but at the stage of his evidence, he has disowned the presence of the informant. The informant could also not have been present on the spot as the injured on the prosecution side were being medically examined at. Dildarnagar around 00.30 hours on 15.5.1981 when the Investigating Officer is said to have made the spot inspection. Further the Investigating Officer admits having written 14.00 hours on the site plan which certainly denotes the time when the site plan was prepared. In his cross-examination the Investigating Officer has however, stated that he gave this time through an omission. Dildarnagar around 00.30 hours on 15.5.1981 when the Investigating Officer is said to have made the spot inspection. Further the Investigating Officer admits having written 14.00 hours on the site plan which certainly denotes the time when the site plan was prepared. In his cross-examination the Investigating Officer has however, stated that he gave this time through an omission. Then a perusal of the case diary also shows that P.W.5 S.I. Ram Bahal Singh started investigation at 23.00 hours on 14.5.1981, and after proceeding at the dispensary at Dildarnagar he interrogated the injured present there in connection with their medical examination. He is found to have recorded the statements of these injured covering 8-9 pages. Admittedly village Usia lies at a distance of about 4 miles from the spot. It is hardly believable that within an hour and a half the Investigating Officer would have recorded the evidence of the prosecution witnesses covering 8-9 pages and then would have settled the distance of four miles to make the spot inspection at 00.30 hours as stated by him. The Sub-Inspector of police is not expected to behave like a village rustic. He having investigated a large number of cases and appeared for evidence in number of cases in his life is not supposed to be ignorant of the fact as to when the date changes. A perusal of the case diary shows that the spot inspection was made by the Investigating Officer on the very day of the incident i.e. on 14.5.1981. Had the inspection been made at 00.30 hours, the Investigating Officer must have put the date as 15.5.1981. Taking the benefit of his bad handwriting it has been argued that the date put up by the Investigating Officer on the site planis 15.5.1981 and not 14.5.1981. This fact is belied from the perusal of the case diary maintained by the investigating officer. On 16.5.1981 when the Investigating Officer began the investigation in this case, he has made a mention in the case diary of 16.5.1981 that the first parcha has already been submitted by him on 14.5.1981. One fail to understand that if the investigating officer made the spot inspection on 15.5.1981 at 00.30 hours how could the first parcha be submitted on 14.5.1981. Then there is also a mention in the inspectior note that the accused could not be found by the Investigating Officer. The evidence of Dr. One fail to understand that if the investigating officer made the spot inspection on 15.5.1981 at 00.30 hours how could the first parcha be submitted on 14.5.1981. Then there is also a mention in the inspectior note that the accused could not be found by the Investigating Officer. The evidence of Dr. R.C. Purohit shows that some of the injured on the defence side were medically examined between 11 p.m. On 14.5.1981 and 12.10 a.m. On 15.5.1981 at the State Allopathic Dispensary, Dildarnagar, had the Investigating Officer visited the Dildarnagar dispensary at 23.00 hours on 14.5.1981 when he is said to have recorded the statements of Ishtiyaq and others injured on the prosecution side, he could very well have found the accused of this case also there at the dispensary.. All these show that the investigation conducted by P.W.5 S.I. Ram Bahal Singh is farce and tainted. Therefore, no reliance can be placed on the statement of Ishtiyaq deceased allegedly recorded by P.W.5 S.I. Ram Bahal Singh. This however, will not affect the merit of the prosecution case. The fact remains that there is oral testimony of the two eye-witnesses P.W.1 Zahid Khan and P.W.2 Nisar Khan. 16.Learned counsel for the appellant has vehemently argued that a cross version of the incident was lodged by the accused/appellant no.4 Abul Khan and four persons from the side of accused namely Naseem, Abul Khan (appellant no.4), Jokhan and Shamshuddin have received injuries in the incident. No plausible explanation regarding the injuries on the side of the accused have been given by the prosecution and further the findings recorded by the trial court disbelieving the cross version lodged from the side of accused is bad and the trial court had erred in recording the finding that it was the accused who were the aggressor. Hence the judgment of the trial court should be set-aside and the accused be acquitted. Hence the judgment of the trial court should be set-aside and the accused be acquitted. 17.The argument which has been advanced by learned counsel for the appellant regarding the disbelieving of the cross version of the incident lodged from their side by accused Abul Khan is concerned, it is noteworthy to mention here that the trial court has scanned the evidence adduced by both the sides and found that one defence witness D.W.1 Jokhan Khan who had been produced by the defence to testify the defence version has also not stated even a word about the construction of walls or having seen the eastern boundary wall of Dinia School not being raised over the plot no.1702. The trial court further found that the son of D.W.1 Jokhan namely Aslam is also an accused in the present case and for the said reason had come forward to prove the cross version of the incident. The trial court further found that the defence has also not even explained the injuries received by the victims on the prosecution side. The findings recorded by the trial court in disbelieving the defence version does not find any fault as from the side of the prosecution one of the injured Ibrar Khan who was taken away by the accused persons after the incident had suffered five injuries on his person. Moreover the said injured succumbed to his injuries in the night of 17/18.5.1981 at 1.40 a.m. and the post-mortem conducted on 18.5.1981 shows that he has died as a result of injury no.1 which was caused him by the accused appellant. The prosecution at the last stage has submitted that the injury no.1 on account of which the death of injured Ibrar Khan had taken place was assigned to accused Abul Khan. The finding of conviction recorded against the accused/appellant by the trial court from the evidence on record does not appear to be against the evidence on record. The trial court has rightly convicted and sentenced the appellants and had already taken a liberal view against the accused/appellants for convicting them for offence under Section 304 part-II IPC read with Section 149 IPC along with other offences which they were charged with. The trial court has rightly convicted and sentenced the appellants and had already taken a liberal view against the accused/appellants for convicting them for offence under Section 304 part-II IPC read with Section 149 IPC along with other offences which they were charged with. 18.Learned counsel for the appellants, lastly submits that the appellant no.4 Abul Khan, S/o Hanif Khan is aged about 60 years of age, appellant no.5 Naseem Khan, S/o Khalil Khan is aged about 42 years and appellant no.7 Aslam Khan S/o Jokhan Khan is aged about 46 years of age. The incident is 33 years old and the appeal has come up for hearing after 32 years. The appellants are living and have settled with their families and it will be too harsh if the appellants are sent to jail after so many years. The appellants have already remained in jail for about three months in jail during the course of the trial and after their conviction by the trial court after which they filed appeal before this Court and were released on bail during the pendency of appeal. Hence the rest of the sentence of the appellants be converted into fine and the same shall not be treated as an enhancement of sentence. 19.On the other hand learned counsel for the complainant and learned AGA have submitted that trial Court has rightly convicted the appellant and the evidence of the injured witness was sufficient against the appellants for their conviction. The learned AGA further submitted that the cross case lodged by accused/appellant which was registered as Sessions Trial No.87 of 1981 State Vs. Jahid and others by accused Abul Khan against the injured persons, deceased and others has resulted in acquittal by the trial court against which the appellant Abul Khan has not preferred any appeal or revision against the acquittal of the accused persons of the cross case. 20.Thus, from the record and the evidence of the injured and other prosecution witness, I do not find anything adverse which may discard their testimony and further the prosecution has proved it's case beyond reasonable doubt against the appellants thus the conviction and sentence of the appellants as awarded by the trial court is upheld. 20.Thus, from the record and the evidence of the injured and other prosecution witness, I do not find anything adverse which may discard their testimony and further the prosecution has proved it's case beyond reasonable doubt against the appellants thus the conviction and sentence of the appellants as awarded by the trial court is upheld. 21.Considering the facts and circumstances of the case and the submissions of the counsel for the appellants is that the incident is 33 years old and the appeal has come up for hearing after 32 years for hearing and the position of the appellants as on date, it is directed that rest of the sentence of the appellant no.4 Abul Khan converted into fine of Rs. 1,00,000/-, and rest of the sentence of appellant no.5 and 7 namely Naseem Khan and Aslam Khan is converted into fine of Rs.10,000/- each which shall be deposited by the appellants in the Court of C.J.M. Ghazipur within three months from today. Out of total amount i.e. 1,20,000/-, Rs. 1,00,000/- is directed to be paid to the legal heirs of deceased in equal proportion, if any, and Rs.10,000/- shall be given to 4 injured persons or to their legal heirs in equal proportion and Rs. 10,000/- shall go to the State. In default of payment of fine, as directed above, the appellants shall be taken into custody to serve out the sentence, as ordered by the trial Court. 22.In view of the above, the appeal is partly allowed. 23.Office is directed to send a certified copy of this order to CJM, Ghazipur for its compliance.