KHEM CHAND Vs. STATE OF U P

JUDGEMENT

(1.) By this appeal the appellants Khem Chand (since dead), Rajendra and Surender Singh have impugned the judgement and order dated 01.07.1981 rendered by Mr. Sushil Kumar, the then learned I-Additional Sessions Judge, Ghaziabad in Session Trial No. 1 of 1978 whereby the learned Additional Sessions Judge convicted and sentenced each of the appellants Khem Chand and Rajendra to undergo rigorous imprisonment of ten years under sections 304/34 IPC and rigorous imprisonment of six months under section 323/34 IPC. The learned Additional Sessions Judge convicted and sentenced the appellant Surender Singh to under go rigorous imprisonment of four years under sections 304/34 IPC and rigorous imprisonment of six months under section 323/34 IPC. All the sentences have been directed to run concurrently.

(2.) The prosecution story leading to this appeal in nutshell is that on 6.10.1977 at about 10.30 A.M. P.W.-1, Rati Ram (the complainant) had proceeded on his motorcycle from village Sikree and when he reached behind Modi Sugar Mill, Modinagar, the deceased Nanak met him near the gate and requested him to give lift up to the railway station. The complainant allowed the deceased Nanak to sit on the pillion of the motorcycle. When the complainant and the deceased reached near the railway godown towards east of the factory wall, a cycle ridden by the appellants Surender and Rajendra took a sudden turn but the complainant safely avoided the accident. The deceased Nanak reprimanded the said two appellants. The appellants Surender and Rajendra dropped their cycle and caught hold of the deceased Nanak. The appellant Rejendra took out knife from his font of Tehmad and called his father Khem Chand (appellant no. 1) also to come with Khutpavri. Accordingly, all the three appellants caused injuries to the deceased Nanak with their respective weapons. The complainant, (P.W. -1, Rati Ram) came to the rescue of the deceased but he was also assaulted by the appellants. In the meantime, P.W. -2, Tota Giri and four constables, namely Om Prakash, P.W.-4, Devendra Sharma, P.W.-5, Pramod Kumar and P.W.-6, Qasim Raza also arrived there. All the three appellants were arrested on the spot along with their arms. The deceased Nanak had sustained serious injuries, therefore, the aforesaid persons took the deceased on a rickshaw to a hospital in Modinagar but the deceased succumbed to the injuries on way to the hospital. One constable was left with the dead body of the deceased and three other constables took the appellants along with their arms to the Police Station Modinagar, where the complainant lodged the FIR (Exhibit Ka-2), on which basis the police registered the case and proceeded to investigate the matter. P.W.-10, Ram Chander Singh, Inspector, undertook the investigation. He prepared inquest report, Exhibit Ka-1 and other formal papers and sealed the dead body of the deceased and sent the same for post mortem examination. The Investigating Officer, thereafter, visited the place of occurrence, prepared the site plan (Exhibit Ka-10), took blood stained and plain earth and concrete from the place of occurrence and prepared their memos. The Investigating Officer recovered the complainant's motorcycle from the place of occurrence and also prepared its memo. During the course of investigation, the Investigating Officer (P.W.-10 Ram Chandra Singh) was transferred, consequently the investigation was undertaken by his successor, P.W.-8, Sher Singh, who completed the remaining part of the investigation and submitted the charge sheet (Exhibit Ka-4) against all the appellants.

(3.) P.W.-11, Dr Dilwar Singh, Medical Officer, PL Sharma Hospital, Meerut conducted the post mortem examination on the dead body of the deceased on 07.10.1977 at 3.45 p.m. and found the following ante mortem injuries on the dead body of the deceased: