SURENDRA @ CHIKNA Vs. STATE

JUDGEMENT

(1.) BOTH these two criminal appeals under section 374 of the Code of Criminal Procedure have been filed against the same judgment and order dated 25-8-2003 passed by learned Sessions Judge, Dehradun in S.T. No. 75/2002 State Vs. Urnesh Dimri and others, whereby the Sessions Judge has convicted Umesh Dimri @ Mukesh Dimri, Surendra @ Chikna & Rakesh @ Raka and sentenced them to un­dergo RI for five years under section 307 read with section 34 IPC and fur­ther to pay fine of Rs. 2000/- each and in default of payment of fine all the convicts shall have to undergo further rigorous imprisonment for six months each. However, Umesh Dimri @ Mukesh Dimri, Surendra @ Chikna and Rakesh @ Raka were acquitted from the charge under section 504 IPC.

(2.) BRIEF facts of the case are that on 5-4-2002 at about 4PM Om Prakash Yadav (PW-1) an ice cream seller was coming to his house after selling the ice cream and on the way when he reached near Shiv Mandir, M.D.D.A. Colony, Kedarpuram accused-Umesh Dimri @ Mukesh Dimri, Surendra @ Chikna and Rakesh @ Raka met him there and they stopped him. Accused persons then demanded money from him for purchasing the liquor. When he refused to give the money the accused persons have wielded `Lathi-Danda' on his head and abused him. The victim­ Om Prakash sustained the injuries on his head and face. Raj Kumar (PW-4) and Banwari Lal (PW-3) informant reached there and witnessed the occur­rence. They raised alarm and tried to chase the assailants but the assailants made their escape good from there. Banwari Lal (PW-3) - informant with the assistance of another witness Raj Kumar took the victim-Om Prakash to Doon Hospital and got him medically examined at 6PM on the same day. Thereafter, the written report (Ex.ka.2) scribed by Raj Kumar (PW-4) was lodged by Banwari Lal (PW-3) at the police station Dalanwala on 5-4-2002 at 10:15PM. On the basis of written re­port (Ex.ka.2), the FIR (Ex.ka.5) was prepared and a case was registered. The investigation was entrusted to S.I. H.S. Negi (PW-5) who visited the place of occurrence and prepared site plan and recorded the statements of the wit­nesses. After completing the investiga­tion, the chargesheet was submitted by the I.O. against the appellants and Rakesh @ Raka under section 307/34 and 504/34 IPC.

(3.) IN order to prove its case, the prosecution has produced seven wit­nesses. Om Prakash Yadav (PW-1) was the victim of the incident. Dr. S.S. Tollia (PW-2) conducted the medical exami­nation of the injured-Om Prakash on 5­-4-2002 at about 6PM and detected the following injuries on his person