PRATAP SINGH ALIAS PIKKI Vs. STATE

JUDGEMENT

(1.) This criminal appeal, preferred under section 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 12.01.1998 passed by the II Addl. Sessions Judge, Nainital, in Sessions Trial No.350 of 1995, State Vs. Pratap Singh & others, whereby the learned Sessions Judge has convicted the appellants/accused for the offence punishable u/s 304 (Part II)/34 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to ten years' rigorous imprisonment and further convicting and sentencing them for six months' imprisonment u/s 323/34 IPC. All the sentences were directed to run concurrently. Appellants/accused were acquitted for the offences punishable u/s 147/148 and 302/149 IPC. Co-accused Manoj Singh Rautela and Deepak Pathak were acquitted by the trial court for the charges leveled against them.

(2.) I have heard learned counsel for the parties and perused the entire material available on record.

(3.) In brief, the prosecution case is that complainant (P.W.1) Mukesh Sah lodged an FIR stating therein that on 18.6.1995, his cousin brother Rajesh Sah had gone to see Jagjit Singh night in the flat at Mallital, Nainital. At about 10:30 PM, Manoj Joshi, friend of Rajesh Sah, had come and informed that some boys have committed Marpit with his brother near the Flat and the situation of Rajesh was serious and he was admitted in BD Pandey Hospital. On this information, the complainant immediately rushed to BD Pandey Hospital and saw that his cousin brother Rajesh was in operation theatre. When his cousin brother was brought out, he was unconscious and after some time at about 12:25 AM, he succumbed to his injuries. He also came to know that in the Marpit committed with his brother, Harshwardhan Verma, Sanjay Goswami and Deepak Verma also sustained the injuries. He further came to know that in Jagjit Singh night, his cousin brother along with Harshvardhan Verma, Deepak Verma, Pankaj Verma, Sanjay Goswami and Tanmay Tiwari @ Fatty was there and on their next row, some girls were sitting to whom some boys were passing indecent remarks. Complainant's brother Rajesh stopped those boys not to do so, on which one of those boys slapped Rajesh and gone from there by threatening to see him. When Jagjit Singh music night was going to end and the people were coming out of it and Rajesh Sah along with his associates proceeded towards his house, then near the Fountation at about 10 PM in the night, 5-6 boys assaulted Rajesh by Lathis-Dandas. After sustaining injuries, Rajesh fell down on the earth but even then, those accused continued beating him. Some of the companions of Rajesh, namely, Harshvardhan Verma, Deepak Verma and others tried to intervene, who too sustained the injuries. Injured Rajesh was then immediately brought to BD Pandey hospital. The persons accompanying Rajesh informed the names of accused as Pratap Singh Bisht @ Vikky, Vikas Kirola, one Pathak and 2-3 other boys were there, however their names were not known. There was sufficient light on the place of occurrence because Jagjit Singh night was there. With the same averments, the FIR Ex.Ka-1 was lodged by P.W.1 Mukesh Sah on 19.6.1995 at 1:20 AM at P.S. Mallital, Distt. Nainital. On the basis of the FIR (Ex.Ka-1), H.M. Dan Singh prepared the Chik FIR, i.e. Ex.Ka-17. In the same process, entry was also made by him in the G.D., the copy of which is Ex.Ka-18. Investigation of this case was entrusted to P.W.6 S.I. Prem Singh. Injured Rajesh Sah was primarily medically examined on 18.6.95 at 10:10 PM by PW5 Dr. Rajeev Kumar, who after the examination, prepared injury report, Ex.Ka-3. Similarly Injured Harshwardhan was examined at 1:10 AM on 19.6.95, and his injury report Ex.Ka-4 was prepared. Injured Sanjay Goswami was examined on 19.6.95 at 1:15 AM and his injury report Ex.Ka-5 was prepared. Likewise, injured Deepak Verma was examined on 19.6.95 at 1:20 AM and his injury report Ex.Ka-6 was also prepared by the same medical officer. In the intervening night of 18/19.6.95 at about 12:30 AM, injured Rajesh Sah succumbed to his injuries and post- mortem on the dead body was conducted on 19.6.95 at 11:45 AM and post-mortem report Ex.Ka-2 was prepared by PW4 Dr. JP Bhatt. On 19.6.95, inquest of his dead body was conducted by the I.O. and inquest report Ex.Ka-8 was prepared. Along with it, specimen of seal Ex.Ka-9, Police Form No.33, Ka-10, letter to CMO Ex.Ka-11, Police Form No.13 Ka-12 and sketch of dead body Ex.ka-13 were prepared. The I.O. also prepared the site plan of the place of occurrence Ex.Ka-7. The Investigating Officer during the course of investigation, recorded the statements of the witnesses and on completing the investigation, he filed the charge sheet Ex.Ka-14. Bloodstained clothes of deceased Rajesh Sah was sent by CJM, Nainital to the Chemical Laboratory vide Ex.Ka-15 and the report given by the Scientific Officer, Scientific Laboratory, Agra is Ex.Ka-16, in which it is stated that blood spots as well as human blood was found on the clothes of deceased.