TINU Vs. STATE OF U P

JUDGEMENT

(1.) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 18.09.1997, passed by Addl. Sessions Judge, Roorkee, in Sessions trial No. 91 of 1989, whereby said court has convicted Appellants Tinu @ Bhanwar Singh, Kaka @ Kulbir and Babloo @ Bhupendra under Section 394 read with Section 397 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.). All the three Appellants have further been convicted under Section 304 read with Section 34 of I.P.C. Each one of the Appellants has been sentenced to undergo rigorous imprisonment for a period of ten years and also directed to pay fine of 5,000/- (under Section 394 read with Section 397 of I.P.C.), and rigorous imprisonment for a period of ten years (under Section 304 read with Section 34 of I.P.C.). Both the sentences were directed to run concurrently by the trial court.

(2.) Heard learned Counsel for the parties and perused the lower court record.

(3.) Prosecution story, in brief, is that on 09.06.1988, complainant Sunil Kumar (P.W. 1) got lodged first information report (Ext. A -1) at police station Kotwali Roorkee, at 10:30 hours, alleging that on said day at about 08:45 P.M., four persons entered in his house, and committed robbery after tying the complainant, his brother Anil Kumar and uncle Janeshwar Das. It is also alleged by the complainant that all the family members, including the women, were threatened of dire consequences by the miscreants who were armed with sharp edged weapons. It is also stated that Baseshwar Dayal (deceased), father of the complainant, meanwhile came from outside and knocked the door, as the miscreants have closed the door from inside. In an attempt to escape from the house two of the miscreants inflicted knife blows on the person of Baseshwar Dayal, and ran away. Baseshwar Dayal was immediately taken to Civil Hospital, Roorkee, where a surgery was conducted on him, but he succumbed to the injuries during surgery. On the basis of the report (Ext. A -1) which was lodged before death of Baseshwar Dayal, a check report (Ext A -6) was prepared at police station and Crime No. 184 of 1988 was registered against four persons, including accused/Appellants Tinu @ Bhanwar Singh and Kiran (since deceased), as the complainant in his first information report disclosed that out of the four, he could identify said two, who were residents of his own village Paniyala. Investigation was taken up by P.W. 5 Sub Inspector S.C. Pachauri. The crime which was initially registered in respect of offences punishable under Section 394 and 307 of I.P.C. and later converted into one punishable under Section 396 of I.P.C. (after death of the injured). During investigation the police took dead body of the deceased in their possession, prepared inquest report (Ext. A -3), sketch of the dead body (Ext. A -15), police form No. 13 (Ext. A -14), and letter to the Chief Medical Officer (Ext. -13) requesting for postmortem examination. The dead body of Baseshwar Dayal was sent for postmortem examination. Dr. K.P. Sarabhai (P.W. 4) conducted postmortem examination on dead body of the deceased and prepared autopsy report (Ext. A -5) on 10.06.1988, at 02:00 P.M. He recorded as many as seven ante mortem injuries and opined that shock and haemorrhage due to the ante mortem injuries was the cause of death of the deceased. Before that, at the time of admitting the patient (Baseshwar Dayal) in the hospital, stab wound was recorded in injury report (Ext. A -4) by Dr. S.K. Srivastava (P.W. 3). Dying declaration of the deceased (Ext. A -16) was recorded by the Tehsildar, Roorkee. After interrogating the witnesses, the Investigating Officer submitted charge sheet (Ext. A -10) against the accused Kiran (since deceased), Tinu @ Bhanwar Singh (Appellant No. 1), Kaka @ Kublir (Appellant No. 2), Babloo @ Bhupendra (Appellant No. 3), and two others Pradeep and Ashok. The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions, for trial.