Dharam Veer - (1.)THIS appeal has been preferred under Section 374(2) of Code of Criminal Procedure 1973 (hereinafter to be referred as Cr.P.C.) against the judgment and order dated 7.8.1985 passed by Sessions Judge Almora, in Sessions trial No. 19 of 1983, State Versus Khushal Singh and Jagat Singh, whereby the learned Sessions Judge has convicted the appellants Khushal Singh and Jagat Singh both under Section 307 read with Section 34 I.P.C. and has awarded a sentence to undergo rigorous imprisonment for a period of three years to each of them. In brief the prosecution story is that Sarup Singh PW -4 is a resident of a village Ghuguti. Smt. Jhapuli Devi PW -5 is his wife and Sudan Singh P.W. 2 is his brother. The accused persons are also residents of village Ghughuti and they are related to each other. It is alleged that Smt. Lali Devi, who was resident on village Ghughuti, was wife of Kam Singh. On the death of Kam Singh, Smt. Lali Devi came into possession over the land and other property belonging to Kam Singh. Kam Singh had a son and a daughter. His son however untraceable since a long time and his daughter was married after the death of Kam Singh. Padam Singh who was the father of Sarup Singh and Sudan Singh started living with Smt. Lali Devi as her husband. Lali Devi died in 1979 and after that Sudan Singh and Sarup Singh continued to be in possession of the land and other property belonging to Kam Singh. These persons had also constructed three houses on the land belonging to Kam Singh. It is stated that after Smt. Lali Devi died, the accused persons and their relative Govind Singh started asking Sarup Singh and Sudan Singh to vacate the houses and land and threatened to beat them in case they failed to do so. It is also stated that ultimately, these accused persons dispossessed Sarup Singh and Sudan Singh and for this reason there was enmity between the two sides.
(2.)IT was stated that early in the morning at 24.04.1982 at 5:30 A.M., Sarup Singh was proceeding for Bohragaon to work at the fields of Gusain Datt and Smt. Jhapuli Devi was proceeding for cutting her wheat crop. Both these persons went together for some distance, after which Sarup Singh started proceedings for Bohargaon. When he reached Monidhaya Tok, both the accused persons Kushal Singh and Jagat Singh along with the absconding accused Govind Singh reached there armed with Lathis and started beating with their weapons. The shouts of Sarup Singh attracted Smt. Jhapuli Devi P.W. 5 who also saw the assailants beating her husband. The accused persons and Govind Singh then went away from the scene of occurrence leaving Sarup Singh injured badly. Smt. Japuli Devi reached near Sarup Singh and sat near him. A little later Man Singh P.W. 1 accompanied by his son reached the place of the occurrence and found Sarup Singh lying injured there. On enquiry from Sarup Singh, Sarup Singh told him that he had been injured by Khushal Singh, Jagat Singh and Govind Singh. Man Singh P.W. 1 then called Sudan Singh P.W. 2 and informed him that Sarup Singh was lying injured in Monidhaya Tok. Sudan Singh P.W. 2 and a number of residents of the village reached at the scene of occurrence. They were also told about the name of the assailants by Sarup Singh P.W. 4, Sudan Singh P.W. 2 then got F.I.R. Ex. Ka -1 written on the spot and lodged the same with the Patwari Daulat Ram, P.W. 6 who was in -charge of the area in the absence of Bahadur Ram Patwari, registered the case on the basis of the written report. He prepared the chick report Ex. Ka -3 and recorded the statement of Sudan Singh. He reached the scene of occurrence and found the villagers and Smt. Jhapuli Devi present near the injured. Injured Sarup Singh was then sent to Deghat Hospital. The statement of Smt. Jhapuli Devi was recorded by the Investigation Officer. The Investigation Officer took in his possession blood stained and plain clay from the scene of occurrence and prepared the Fards Ex. Ka -4 after local inspection. The Patwari then reached Deghat Hospital and recorded the statement of Sarup Singh injured. He also took in his possession the blood stained clothes of Sarup Singh and prepared the Fard -Ex. Ka -7. He recorded the statement of some other witnesses. Further investigation in the case was conducted by Bahadur Ram, Patwari P.W. 7. On the transfer of Bahadur Ram Patwari, further investigation was conducted by Devi Datt Sati, Patwari. Devi Datt Sati, Patwari, proceeded on leave and Bhupal Singh Bora, Patwari conducted further investigation in the case. He submitted the charge sheet Ex. Ka -8 against the accused persons and the absconding accused Govind Singh on 28.10.1982 in the court of Munsif Magistrate, Ranikhet.
After complying with the provisions of Section 207 of the Code of Criminal Procedure. The learned Munsif Magistrate, Ranikhet has committed the case to the court of Sessions on 14.4.1983.

(3.)THE learned Sessions Judge on 15.06.1983 has framed charge under Section 307 read with Section 34 I.P.C. against the present appellants. The charge against the appellant was explained to them who pleaded not guilty and claimed to be tired. The prosecution in support of his case has examined the evidence of P.W. 1 Man Singh, P.W. 2 Sudan Singh, P.W. 3 Dr. O.P.L. Srivastava, P.W. 4 Sarup Singh (injured witness) P.W. 5 Smt. Japuli Devi (eye witness) and P.W. 6 Daulat Ram Patwari, P.W. 7 Bahadur Ram Patwari, and P.W. 8 Dr. V.S. Srivastava. After that the statement of the accused persons were recorded under Section 313 Cr.P.C. The accused denied the allegations made against them by the prosecution. After appreciating the entire evidence on record, the learned Sessions Judge has convicted the present appellant Section 307 read that Section 34 I.P.C. and awarded a sentence for three years to each of them. Against the said order the appellants have filed the present appeal.
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