GURNAM SINGH Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal, preferred under Section 374(2) of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 26 -02 -1985 passed by Special Judge (Additional Sessions Judge) Nainital in Sessions Trial No. 205 of 1983, State v. Gurnam Singh & Balwant Singh, whereby the learned Special Judge (Addl. Sessions Judge) has convicted the Appellant Gurnam Singh under Section 325 I.P.C. and sentenced him to undergo 18 months R.I. and awarded a fine of Rs. 3,000/ - and in default of fine to undergo one year R.I. The Appellant Gurnam Singh was acquitted for an offence punishable under Section 307 IPC. However, the accused Balwant Singh was not found guilty of the charge framed against him under Section 307 read with 34 I.P.C. and he was accordingly acquitted.

(2.) THE prosecution story in brief is that about 5 -6 years before the incident, the informant Uttam Singh had purchased a land from one Balwant Singh and he was since then in the possession. The sale deed, however, had not executed. It was alleged that Balwant Singh took a loan on this land for installing a water pump. When the informant came to know about this, he protested and this ended in a quarrel between them. The proceedings under Section 107/116 Code of Criminal Procedure were also initiated against them. Since then the Balwant Singh used to harass the Uttam Singh and he had also encroached upon the said land. The result was that Balwant Singh started having enmity against him. On 21 -1 -1983 at about 8:00 A.M., Uttam Singh and his son Balkar Singh was going to their field to irrigate the same. Balkar Singh was walking about 10 -12 paces ahead of him and when they reached a little ahead of the house of Harbans, Balwant Singh shouted his son Gurnam Singh to kill Balkar Singh by firing at him. Gurnam Singh then fired a pistol shot at Balkar Singh and it hit him on his right thigh and he fell down on the ground. Uttam Singh raised an alarm on which Chinda Singh and Kashmir Singh arrived on the spot. The accused then made good their escape. Thereafter, injured Balkar Singh was brought to Sitarganj where Uttam Singh got a report Ex.Ka.2 written. Then Uttam Singh had lodged the same at the Police Station, Sitarganj. Head Constable, Amar Singh wrote the FIR, Ex.Ka -8 on the basis of this report and entered the esse in the general diary at report No. 20 i.s. Ex.Ks.9. Thereafter, the injured Balkar Singh was taken to the hospital where he was medically examined by Dr. R.S. Jani (PW1) at 12:10 p.m. After that, the investigation of the case was entrusted to S.I. Mahendra Pal Singh (PW5) who recorded the statements of witnesses and after inspecting the place of occurrence, prepared the site plan Ex.Ka.4. He also took blood stained and plain earth from the place of occurrence and sealed them separately and memo was prepared, that memo is Ex.Ka.5. On the spot, he found one empty cartridge which he took into custody and a memo was prepared, that memo is Ex.Ka.6. After completing the investigation, he submitted the charge sheet Ex.Ka.7 against the Appellant Gurnam Singh and accused Balwant Singh. Thereafter, the charge under Section 307 IPC was framed against the Appellant Gurnam Singh and under section 307 read with 34 IPC against the Balwant Singh. The Appellant Gurnam Singh and the accused Balwant Singh pleaded not guilty claimed to be tried.

(3.) I have heard Mr. R.S. Sammal, learned Counsel for the Appellants and Mr. M.A. Khan, learned brief holder for the State.