VINESH AND ANOTHER Vs. STATE

JUDGEMENT

(1.) THIS appeal, preferred under section 374(2) of the Code of Criminal Proce­dure, 1973 'hereinafter to be referred as Cr.P.C., is directed against the judg­ment and order dated 16-01-1992 passed by Additional Sessions Judge, Roorkee in Sessions Trial 289 of 1988 State vs. Vinesh and three others, whereby the learned Additional Sessions Judge has convicted the appellant-accused Vinesh u/s 307 of the Indian Penal Code, 1860 (hereinafter to be re­ferred as I.P.C.) and sentenced him to undergo 8 years' R.I. and the appellant/accused Asha Ram was convicted u/s 323 I.P.C. and sentenced him to pay fine of Rs. 1, 000/- and in default of payment of fine within 15 days, 2 months' im­prisonment was towarded to him. It was also directed that out of the the recov­ered from the accused/appellant Asha Ram arm of Rs. 800/- would be paid to the injured Kunwar Singh. The co-accused persons Nand Kishore and Rajendra were acquitted by the trial court from the charge levelled against them.

(2.) THE Chief Judicial Magistrate, Haridwar vide report dated 19-04-2004 has reported that the accused/appellant Asha Ram has died on 10-12-2003 and on the basis of this report the appeal pre­ferred by the accused/appellant Asha Ram stood abated by the orders of this Court on 05-08-2004.

(3.) IN brief the prosecution case is that on 07-11-1986 at about 8:00 p.m. at Mohaila Amod Kunj, University Roorkee when the complainant Ram Singh was installing electric wire to lit a bulb at his house frore the house of his neighbour Kalyan Singn to his house then the accused/appellant Vinesh armed with TAMANCHA, Asha Ram amed with iron rod (SARIA), Nand Kishore and Rejendra Singh armed with LATHIES had came at the house of the accused/appellant Asha Ram and told Ram Singh not to take electric wire in front of their he use. When Kunwar Singh (PW-2) came to intervene, then the accused/appellant Vinesh had fired on him with a TAMANCHA of 12 bore, due to which he received gunshot inju­ries at his left thigh. The accused/appel­lant Asha Ram wielded iron rod and the co-accused Nand Kishore and Rajendra wielded LATHIES The complainant Ram Singh made noise and on hearing the noise when his wife Pramila and brother Chaman and other people of the locality have reached at the place of occurrence, then the accused-assailants have also caused injuries to his wife Pramila and brother Chaman. With the same averments, the complainant Ram Singh had lodged a First Information Report at the Police Station Roorkee on 07-11-1986 at 10:00 p.m. orally. The Head Moharir Ramesh Chandra Sharma (PW-6) has prepared the Chik First In­formation Report i.e. Ext. Ka-1. An en­try was made in the G.D. by the Head Moharir Ramesh Chandra Sharma (PW-6) a copy of the G.D. is Ext. Ka-5. The injured Kunwar Singh was medically examined by PW-5 Dr. Harish Chandra Dua-Medical Officer on 08-11 -1986 at 2:30 a.m. who was brought to the hos­pital by the complainant Ram Singh that injury report is Ext. Ka-2. The injured Chaman lal was also medically exam­ined by PW-5 D. Harish Chandra Dua-Medical Officer on 08-11-1986 at 2:00 a.m. that injury report is Ext. Ka-3. The injured Pramila was also medically ex­amined by PW-5 Dr. Harish Chanda Dua-Medical Officer on 07-11 -1986 at 10:00 p m. that injury report, is Ext. Ka-4. Investigating of this case was on-trusted to S.S.I. Dale Ram Bhukesh. The accused/appellant Vinesh was also medical examined by PW-5 Dr. Harish Chandra Dua-Medical Officer on 07-11-1986 at 11:45 p.m. who was brought to the hospital by Constable 172 Ram Kumar and Constable 1524 Narendra Singh of Police Station Roorkee. The accused Asha Ram was also medically examined by PW-5 Dr. Harish Chandra Dua-Medical Other on 08-11-1986 at 12:05 a.m. who was also brought in the hospital by Constable 172 Raj Kumar and Constable 1524 Narendra Singh of Police Station Roorkee. The injury report of the accused/appellant Vinesh is Ext. Kha-1 and the injury report of the ac­cused/appellant Asha Ram is Ext. Kha-2. During the course of investigation, the Investigating Officer has inspected the place of occurrence and prepared the site-plan of the place of occurrence i.e. Ext. Ka-7. He has also taken the blood­stained clay and the plain clay, from the place of occurrence and prepared a FARD i.e. Ext. Ka-8. The I.O. has also recovered a KHOKHA from the place of occurrence and a FARD was prepared, that FARD is Ext. Ka- 9. The I.O. re­corded the statement of the witnesses and after completing the investigation, he filed charge sheet against the ac­cused/appellant and against the co-ac­cused persons u/s 307 and 323 I.P.C. that charge sheet is Ext. Ka-6.