SHAM LAL Vs. STATE

JUDGEMENT

(1.) THIS criminal appeal is directed against the judgment and order of sentence dated 28.9.1990, whereby the learned Sessions Judge, Kathua came to convict the appellants for offence under Section 323 RPC and also came to sentence them to undergo rigorous imprisonment of four years and fine of Rs. 500 each for offence under Section 304 Part -II and also sentenced them to undergo three months rigorous imprisonment for offence punishable under Section 323 RPC. However, both the sentences were made concurrent.

(2.) BRIEFLY stating the case of the prosecution is that on 27.8.1989, one Jagmohan who was injured accompanied by his father Roop Chand injured and Ashok Kumar s/o Duni Chand lodged an ocular report before Police Station, Billawar stating therein that today he was going alongwith his father to his house at village Kishanpur, on reaching near their house at village Kishanpur, they were intercepted by Sham Lal and Shiv Kumar who were armed with lathies having previous enmity with them attacked them. Sham Lal inflicted head injury with the lathi on the head of his father with an intention to do away with his life, on his felling on the ground Shiv Kumar inflicted another head injury and exhorted to kill them. That his father fell unconscious on spot; the said persons attacked him with lathies that on his making noise Ashok Kumar and Naresh Kumar arrived on spot who intervened and the said accused took to their heels. On the receipt of this information, the police Billawar came to register a case under FIR No.70/89 for an offence under Section 307 RPC and proceeded with the investigation of the case by preparing the injury memo of the injured persons, hospitalised Roop Chand who was later referred to SMGS, Jammu, prepared the site plan; recorded the statement of the witnesses under section 161 and approached the hospital at Billawar and then on 27.8.89, 28.8.89, 4.9.89 and 14.9.89 made a request to the doctor attending upon Roop Chand for getting his statement recorded who informed that he is not fit to make a statement. That during the course of investigation, blood strain wearing garments of the deceased were seized and accused Sham Lal was arrested on 28.8.89 and accused Shiv Kumar on 17.9.89. That on 17.9.90, the information was received from SMGS, Jammu hospital that Roop Chand succumbed to his injuries on 16.9.89 at 11 P.M. Pursuant to this information, dead body was received and the same was sent for autopsy. After usual investigation, an offence under Section 302 RPC and an offence under section 323 read with section 34 RPC was found proved against the accused and they came to be accordingly challaned. On receipt of case file after commitment under section 205 -D Cr. PC, the trial court came to frame charge against the accused for offences under section 302 read with section 34 and offenced under section 323 RPC to which the accused pleaded not guilty.

(3.) THE accused persons have assailed the impugned judgment and order of sentence in this memorandum of appeal on the ground that the evidence of prosecution has not been appreciated in right perspective and the trial court has failed to appreciate the fact of suppression regarding FIR scribed by Ashok Kumar handed over to Police Station Billawar.