SUMERA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) This appeal, preferred by the appellants u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 7.3.2002 passed by Additional Sessions Judge/Ist F.T.C., Haldwani, District Nainital in Sessions Trial No.235 of 1994, whereby the learned Additional Sessions Judge convicted the appellants-accused Brijlal @ Lalla and Sumera under Sections 307 read with Section 34 of The Indian Penal Code, 1860 (hereinafter to be referred as IPC) and sentenced each of them to undergo rigorous imprisonment for a period of five years with a fine of Rs.1,000/- each and, in default of payment of fine, three months R.I. was further awarded to each of the appellant. However, the co-accused Moti and Pyara were acquitted by the trial court of the charges levelled against them.

(2.) Heard learned counsel for the parties and perused the entire material on record.

(3.) In brief, the prosecution case is that complainant Sardar Bachan Singh lodged a First Information Report at Police Station Kichcha stating therein that on 1.12.1992 at about 5 PM while his son Kuldeep was coming to his house by taking fodder, appellants-accused Sumera and Brijlal and co-accused Moti and Pyara (acquitted by the trial court), who were standing in the lane near the house of Babu Khan, attacked on the head of his son with a sharp edged weapon. On seeing so many accused persons, his son ran towards his house. While running, a number of people saw him and gathered on the spot whereupon the accused persons fled away. Blood was oozing out from the head of his son, therefore, he was taken to hospital where the doctor got him hospitalized. With the same averments, Sardar Bachan Singh lodged the FIR in the police station on the same day i.e. 1.12.1992 at 6:15 PM. On the basis of this FIR, Chik FIR of the case was prepared by Constable Clerk Pani Ram (PW3), i.e. Ext.Ka-1 and entry to this effect was also made in the G.D. The investigation of this case was entrusted to PW4 Sub Inspector Rameshwar Prasad. Later on the investigation was transferred to Sub Inspector R.P. Singh. The injured was medically on 1.12.1992 at 5:30 PM by PW5 Dr. R.P. Malik, who after the medical examination, prepared the injury report, i.e. Ext.Ka-4. X-ray of the injured was also conducted, the x-ray report is Ext.Ka-5. During the course of investigation, the Investigating Officer recorded the statement of witnesses, inspected the place of occurrence and prepared the site-plan, i.e. Ext.Ka-2 and on completion of investigation, filed the charge sheet against the accused persons, i.e. Ext.Ka-3.