RAFAL Vs. STATE OF U P

JUDGEMENT

(1.) This appeal is directed against the impugned judgment and order dated 23.09.1988 passed by learned 4th Addl. Sessions Judge, Saharanpur in S.T. No. 371 of 1985 arising out of Crime No. 238 of 1982, by which, he has convicted the accused-appellants Rafal, Tilak Ram and Ompal for life imprisonment under Section 302 read with Section 34 of IPC, and under Section 323 read with Section 34 IPC for one year rigorous imprisonment. Both the sentences were ordered to run concurrently.

(2.) Briefly, the facts giving rise to this appeal are that the informant-Brahamanand gave a report on 06.07.1982 at about 03.15 a.m. in the morning at police station, Jwalapur, sub-district Roorkie, Saharanpur, alleging that they had an old enmity with Rafal and Tilak Ram. On 05.07.1982, brother-in-law of Rafal came to his village at about 8.00 p.m. in the night. His son Babu Ram was going to his house and when he reached in front of the house of accused-Rafal, Rafal armed with Pathal (daranti), accused Tilak Ram armed with Ballam and accused- Ompal armed with lathi surrounded Babu Ram and assaulted him. On the cry of Babu Ram, Budh Singh son of Mukunda, nephew of informant who resides with him, ran to rescue Babu Ram, accused-Rafal saying that "Lage haath isko bhi nipta lo" all three accused persons started beating him. On the alarm being raised by Babu Ram and Budh Singh, Jai Pal, Bhir Singh, Jai Mal, Suresh and Brahammanand challenging the accused persons in order to save Babu Ram, rushed towards the spot. Accused-Rafal, Tilak Ram and Ompal, after causing injuries to Babu Ram and Budh Singh fled towards south. After receiving injuries, Babu Ram-deceased fell down on the ground. The informant and his cousin Hari Singh took away injured Babu Ram and Budh Singh to PHC, Bahadarabad by tractor, where the injured persons were medically examined. Babu Ram being serious, was referred to GD hospital, Hardwar. The medical report along with Tahrir was filed by him, Ex.Ka-1., thereafter, chik FIR Ex.Ka-10 was registered as Crime No. 238 of 1982 under Sections 324, 323 of IPC at Police Station Jwalapur, Sahranpur against the appellants. Babu Ram and Budh Singh were medically examined by Dr. C.P. Bhatia (PW-6) on 6.7.1982 at PHC Bahadarabad. The medical reports are Ex.Ka-8 and 9. During examination, the doctor found following injuries respectively on the bodies of Babu Ram and Budh Singh-injured;

(3.) During treatment, on 7.7.1982 at about 7.30 a.m., injured-Babu Ram expired on account of injuries sustained in the incident on 6.7.1982. Thereafter, inquest was conducted by the Investigating Officer- Dharmpal (P.W.5) which is Ex.Ka-3. After preparing relevant documents/records (Ex.Ka-4 to Ex.Ka-7), the dead body of Babu Ram was sent for post mortem examination, which was conducted by doctor Yashpal Singh(P.W.4) who has proved the post mortem report ( Ex. Ka-2) and has found following injuries;