THOUTIYA Vs. STATE OF U.P.

JUDGEMENT

(1.) THIS is an apoeal against the judgment and order of Sri. N.N.Chandha, Sessions Judge, Tehri-Garhwal dated 13.1.79 convicting thoutiya Shiv Ratu and Bijal Singh u/s 302 read with section 34of the I.P.C. and sentencing each of them to imprisonment for life and to pay a fine of Rs. 2000/- and in default of payment of fine to undergo R.I. for one year.

(2.) THE prosecution case as disclosed in the first information report Ext. Ka 9 is that when Nihal Singh was returning to his house between half past ten and elevan P.M. from Hudoli Bazar with oil he cried a loud for help running downwa­rds that Thontiya, Bajal Singh and Shiv Ratu were making murderous assault His brother Ogar Singh who was staving at his house responded to his call uttering that he need not worry as he was corning to this rescue. When Ogar Singh reached near Nihal Singh, he saw Thontiya carrying a Kulhari and Shivatu a danger. The others accompanying him were Bijal Singh and Kansaru and a few more persons who could not be identified in the light of the torch as they were behind the bushes. They were all fleeing away. His brother Nihal Singh had died as a result of the injuries inflicted and blood was oozinq out from his wounds.

(3.) THE prosecution to substantiate the charge had examined Ogar Singh P.W.8) and Smt. Kedari (P.W.9) as the witnesses of the occurrence. Chhatar Singh (P.W.1) and Nagan Singh (P.W.13) who had investigated the case after taking it over from Durga Prasad Jasola (P.W.12) deposed that at the pointing of the appellant Thoutiya, Kulhari used in the assault was recovered from beneath the pine leaves in the jungle of Deothal and danger was recovered from under neath a big stone in the same jungle at the pointing out of Shiv Ratu.Chhatar Singh (P.W.1) and Magan Singh (P.W.13) proved the recovery memos in respect of the Kulhari and danger on record. The Prosecution besides examined a number of other witnesses. Durga Prasad Jalola (PW 12) stated that he prepared the in guest report Ext. Ka. 5, recovery memo in respect of the articles found on the dead body of Nihal Singh and within a distance of 20 steps around it marked Ext. Ka 1, plain and blood stained earth Marked Ext. ka.2, siteplain0f the place of incident Ext. Ka 16, diagram of the deed body Ext. Ka 13, its challan Ext. Ka 14, the letter written by him for post-mortem examination Ext. Ka 15 and the recovery memo in respect of the torch of the informant Ext. Ka.6.