BANSHI Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) APPELLANTS Banshi Lal and Daulat Ram have filed this appeal against the judgment and order dated 31.01.1984 passed by II Additional Sessions Judge, Nainital in Sessions Trial No. 138 of 1981 State Vs. Banshi Lal and others. The learned II Addl. Sessions Judge has convicted the accused Banshi Lal under Sections 452 and 324 of the Indian Penal Code, 1860 (for brevity, hereinafter referred as IPC) and sentenced him to undergo rigorous imprisonment for a period of two years under each count. Accused Daulat Ram was also convicted for the offence punishable under section 452 IPC and 324 read with section 34 IPC and sentenced him to undergo rigorous imprisonment for a period of two years under each count. Both the sentences are directed to run concurrently. Charge was framed against four accused, namely, Banshi Lal, Ganesh Ram, Daulat Ram and Daya Ram but accused Ganesh Ram and Daya Ram are not found guilty by learned II Addl. Sessions Judge and have been acquitted of the charges levelled against them. Accused/appellant Daulat Ram has died and the appeal stands abated against him by the order of this Court dated 06.11.2006.

(2.) IN brief, the prosecution story is that complainant Smt. Kalawati Devi wife of Shyam Lal, was sleeping in her house alongwith her husband Shyam Lal in one room and in another room her mother -in -law Smt. Parwati Devi and sister -in -law Smt. Geeta Devi were sleeping. On the night of 21/22.11.1980 at about 5:00 a.m. accused Banshi Lal, Ganesh Ram, Daya Ram and Daulat Ram, all resident of village Burhabag Chakarpur, P.S. Khatima, the then district Nainital (now District Udham Singh Nagar) who felt enmity with the complainant and her family members in connection with the marriage of Geeta Devi came at the house of Complainant, entered into the house and tried to remove the blanket covering the complainant and her husband. Accused Ganesh Ram and Daya Ram pressed the complainant and her husband and accused Daulat Ram threw light of torch on their faces. At the same moment Banshi Lal gave two blows of Khukhari to Shyam Lal, the husband of the complainant with intention to kill him. One blow struck on the left cheek of Shyam Lal and the other on his left arm. One assault was also made on Smt. Kalawati but that hit only on her head slightly as she shifted from the place as that time. The complainant and her husband raised alarm, on hearing the same, Smt. Parwati Devi and Smt. Geeta Devi who were sleeping in the second room of the house, also came on the spot. On seeing them the accused ran away. They were seen by witnesses Gopal Ram and Tika Ram at the time of running away from the spot. The husband of the accused complainant sustained injuries. The chick FIR (Ext.Ka.3) and the General Diary report (Ext.Ka.4) were prepared by clerk constable Khasti Ballabh on the basis of the written report (Ext. Ka.2). The genuineness of Ext. Ka.3 and Ext. Ka.4 was admitted by the defence, so the prosecution did not examine the clerk constable Khasti Ballabh and the documents were exhibited. The investigation of the case was entrusted to Sri N.N. Pande, sub inspector who investigated the case, recorded the statements of witnesses and prepared the site plan of the place of incident vide Ext. Ka.5. After completing the investigation the charge sheet(Ext.Ka.6) was submitted by the Investigating officer against the accused. The genuineness of Ext. Ka.5 and Ka.6 was admitted by the defence, so the prosecution did not examine the Investigating Officer and the documents were exhibited. One document (Ext.Ka.7) was also filed by the prosecution. This document is the copy of the order passed by the Sub Divisional Magistrate, Khatima on the application of Banshi Lal against Smt. Geeta Devi under section 97 Cr.P.C. After completing the investigation, the I.O. has submitted the charge sheet in the court of Munsif - Magistrate, Haldwani. The Munsif -Magistrate, Haldwani has committed the case to the court of Sessions, Nainital vide order dated 22.07.1981 after giving the copies to the accused persons under section 207 Cr.P.C. the learned II Add 1. Sessions Judge has framed the charge against accused Banshi Lal under Section 307 and 452 IPC. The accused denied the charge and claimed trial.

(3.) THE prosecution has examined PW 1 Dr. J.K. Goel, PW 2 Smt. Kalawati Devi, PW 3 Shyam Lal and PW 4 Smt. Geeta Devi.