BRIJESH Vs. STATE

JUDGEMENT

(1.) THIS appeal, preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 23.06.1989 passed by II Additional Sessions Judge, Nainital in Session Trial No. 170 of 1988, State Vs. Brijesh, whereby the learned II Additional Sessions Judge has convicted the appellant u/s 326 of Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him for three years R.I. This appeal was filed by the appellant in the Allahabad High Court and this High Court of Uttaranchal now Uttarakhand has received the same under Section 35(2) of U.P. Reorganization Act, 2000.

(2.) IN brief, the prosecution story is that the complainant Jaimal Singh, Hari Singh and Sworaj Singh were the three brothers and the Sworaj Singh had three sons namely Vijay Singh, Raj Pal Singh and Brijesh Singh (present appellant). The complainant Jaimal Singh had no child and he had executed a will in favour of his nephew Vijay Singh S/o Sworaj Singh, who is the brother of the appellant Brijesh Singh. Sri Hari Singh, the elder brother of Jaimal Singh had married with a lady who had a son namely Munnu and the Munnu had come as the son of her former husband. Hari Singh was a blind man and he had transferred some of his land in the name of Munnu Singh. Due to this reason, Brijesh Singh felt annoyed. Brijesh Singh had told so many times to complainant Jaimal Singh and his brother Hari Singh to transfer the rest of the land in his name. The brother of the complainant Hari Singh had refused to transfer the land in his name, for this reason, Brijesh Singh was having enmity with the complainant and his brother. On 20.9.1987 at 3:00 A.M., as usual, the complainant and his brother were sleeping in their cots in the night. Then the complainant heard the sound of fire and he got up and heard the screaming of his brother Hari Singh and then he saw that Brijesh Singh had fired by pistol (Tamancha) with the intention to kill him and said that he would kill him. The fire hit in the head of the complainant and then he had also screamed. After hearing the noise, his neighbourers Sunder Singh and Nanhe Singh and some other persons had also reached there who had seen the appellant Brijesh in the electric light. After the incident, Brijesh ran away towards his house having pistol (Tamancha) in his hand. For the above said incident, complainant Jaimal Singh had dictated the FIR to Ram Singh i.e. Ex. Ka -1 and he has lodged this FIR in the Police Station, Jaspur on 20.9.1987 at 3:30 A.M. The distance of the place of occurrence from the police station is 2 furlongs. The Head Constable Shishu Pal Singh has prepared the Chik Report i.e. Ex. Ka -11 and he has made the entry in the G.D., the copy of the GD is Ex. Ka -12. After that the complainant/injured was sent for medical examination to the Combine Hospital, Jaspur and he was medically examined by Dr. G.S. Joshi P.W. 3 on 20.9.1987 at 4:00 A.M. and an injury report was prepared, that report is Ex. Ka -3. Sri Hari Singh, injured was also medically examined by Dr. G.S. Joshi on the same day at 4:15 A.M. and the medical report was prepared, that report is Ex. Ka -2. A supplementary report of Hari Singh was also prepared on 26.9.1987 i.e. Ex. Ka -4 and the supplementary report of Jaimal Singh was also prepared on 26.9.1987 by the Medical Officer, Combine Hospital, Jaspur i.e. Ex. Ka -5. During the investigation, the P.W. 8 I.B. Nautiyal, who is the Investigating Officer of the case, has taken in his possession the blood stained clothes of the injured Hari Singh and he prepared a Fard, that Fard is Ex. Ka -6. The blood stained clothes of Jaimal Singh were also taken into possession and a Fard was prepared, i.e. Ex. Ka -7. He has also taken the blood stained clay and the plain clay in his possession and prepared a Fard, that Fard is Ex. Ka -8. He has taken into the possession Tikli blood stained and for that the Fard was prepared i.e. Ex. Ka -9. He has also taken in possession a Tikli and the teeth blood stained and a Fard was prepared, that Fard is Ex. Ka -10. He has also prepared the site plan on the spot Ex. Ka -13.

(3.) THE A.C.J.M., Kashipur has committed the case to the court of Sessions after complying with the provisions of Section 207 of Cr.P.C. on 3.5.1988. The II Additional Sessions Judge has framed the charge against the appellant u/s 307 I.P.C. on 9.8.1988. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried.