(1.)THIS appeal, preferred under S. 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter to be referred as cr. P. C.), is directed against the judgment and order dated 21-6-1985 passed by Special Judge (Additional Sessions Judge), nainital, in Session Trial No. 70/1983, State v. Dewan Singh and others, whereby, the learned Special Judge (Additional Sessions judge), Nainital has convicted the appellant-Dewan Singh under Ss. 307, I. P. C. and 323/ 34 of Indian Penal Code, 1860 (hereinafter to be referred as I. P. C.) and appellants-Ratan singh, Kashmir Singh and Balbir Singh have been convicted under Ss. 307/34, I. P. C. and ss. 323/34, I. P. C. The appellant-Dewan singh was awarded sentence for a period of 4 years R. I. and to pay a fine of Rs. 2,000/-under S. 307, I. P. C. and also to undergo R. I. for a period of one year and to pay a fine of rs. 500/- under Ss. 323/34, I. P. C. and in case of default of fine under the aforesaid sections, it was directed that the appellant-Dewan Singh would undergo R. I. for a further period of six months and three months respectively. The appellants-Ratan Singh, kashmir Singh, and Balbir Singh were directed to undergo R. I. for a period of 4 years and to pay a fine of Rs. 2,000/- under s. 307/34, I. P. C. and also to undergo R. I. for a period of one year and to pay a fine of rs. 500/- under Ss. 323/34, I. P. C. In case of default of payment of fine under the aforesaid sections, each of the appellants were directed to undergo R. I. for a further period of six months and three months respectively. The substantive sentences were directed to run concurrently. It was also directed that out of the fine recovered from the appellants, an amount of Rs. 1,000/- shall be paid to injured Inder Singh and Rs. 500/- to injured kehar Singh by way of compensation u/s. 357, Cr. P. C.
(2.)IN brief, the prosecution story is that on 30-7-1982 at about 12. 00 noon, Inder singh along with Kehar Singh had gone to plough his land at village Madanapur. The said land was mortgaged by Dewan Singh in favour of Inder Singh. When Inder Singh had started to plough the land at 12. 00 p. m. , then appellant-Dewan Singh armed with pistol (tamancha), appellant-Ratan Singh armed with sword and appellants-Kashmir singh and Balbir Singh, each armed with lathis, had entered into the field. As soon as they arrived into the field, they told, "how they dare to plough the land. " In the meantime, the appellants started to beat Kehar singh and Inder Singh. When Kehar Singh had asked them why they were doing so, then appellant-Dewan Singh had fired by a (tamancha) pistol on Kehar Singh, which hit at the thigh of Kehar Singh. After receiving the injury of fire, Kehar Singh fell down on the land. Then Dalip Singh son of Inder singh along with the help of his brother variyam Singh and Awtar Singh and other people of the village had saved Inder Singh, and Kehar Singh from the appellants. After that the appellants ran away towards their village Motipur. The litigation was also going on about the disputed land between inder Singh and Dewan Singh. For the above said incident, Dalip Singh, son of injured inder Singh had lodged the F. I. R. in Police chowki, Dineshpur, Police Station, rudrapur on 30-7-1982 at 1. 15p. m. i. e. Ex. Ka. 5. On the basis of this F. I. R. Ex. Ka. 5, the Clerk Constable, Mohan Lal prepared the chick report i. e. Ex. Ka. 6. The distance of the Police Chowki from the place of occurrence as shown in the chick F. I. R. is 3 kms. At the same time, the entry was made in the G. D. i. e. Ex. Ka. 7. The injured Inder singh, was examined by Superintendent Dr. O. S. Sharma, in J. L. Nehru Hospital, rudrapur, at 4. 15 p. m. On 30-7-1982, the medical report was prepared by superintendent Dr. O. S. Sharma, i. e. Ex. Ka. 1, the injured Kehar Singh, was also medically examined by Superintendent Dr. O. S. Sharma at 4. 30 p. m. on the same day i. e. 30-7-1982. The injury report of Kehar Singh is Ex. Ka. 2. The supplementary report of injured Inder Singh was also prepared by superintendent Dr. O. S. Sharma in J. L. Nehru Hospital, Rudrapur, that is Ex. Ka. 3 and the supplementary report of Kehar singh was also prepared by Superintendent dr. O. S. Sharma, in J. L. Nehru Hospital, rudrapur i. e. Ex. Ka. 4.
(3.)THE investigation of the case was entrusted to Investigating Officer, Prem Singh, p. W. 8 Sub-Inspector. During the investigation, he has recorded the statements of the witnesses and has taken in his possession the blood stained underwear of Kehar Singh and the Fard was prepared by him that is ex. Ka. 9. The site plan was prepared of the place of occurrence, that is Exh. Ka. 10. From the spot, he has taken the blood stained earth and the plain earth and prepared a fard that is Ex. Ka. 11. The plain earth and blood stained earth were sealed in two separate boxes. After completing the investigation, he has submitted the charge-sheet against the appellants-Dewan Singh, Ratan singh, Kashmir Singh, on 15-9-1982, that charge-sheet is Ex. Ka. 12. On 7-11-1982, he has submitted the charge-sheet against the appellant-Balbir Singh, that is Ex. Ka. 13. Thereafter, the Chief Judicial Magistrate, nainital, has committed the case to the court of Sessions on 23-3-1983 after complying with the provisions of S. 207, Cr. P. C.