Prafulla C. Pant, J. - (1.)This appeal, preferred under Sec. 374(2) of the Code of Criminal Procedure, 1973 (herein -after referred as Cr.P.C.) is directed against the judgment and order dated 02 -05 -1990, passed by learned Sessions Judge, Nainital, in Sessions trial No. 236 of 1986, whereby the accused/Appellants Devendra Singh and Madan Singh have been convicted under Sec. 302 read with Sec. 34 and under Sec. 201 read with Sec. 34 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and each one of them has been sentenced to imprisonment for life under Sec. 302 read with Sec. 34 of I.P.C. and three years rigorous imprisonment and also to pay fine of Rs. 1,000/ - under Sec. 201 read with Sec. 34 of I.P.C. It is directed by the trial court that in default of payment of fine, the defaulter convict shall further undergo six months rigorous imprisonment. Both the sentences were directed to run concurrently by the trial court. (During the pendency of appeal Appellant Devendra Singh as died and his appeal stood abated).
(2.)Heard learned Counsel for the parties and perused the entire evidence on record.
(3.)Prosecution story, in brief, is that on 05 -08 -1986, at about 06:00 P.M., P.W.1 Abdul Aziz along with Abdul Salam (deceased) were sitting outside latter's house in village Bagjala Payaya Gaulapar within the territorial limits of P.S. Haldwani. P.W.2 Abdul Rasid, P.W.3 Abdul Majid (real brother of the deceased) and P.W.4 Pratap Singh were also present there. Accused/Appellant Devendra Singh, armed with 'DARAT' (sickle) along with his elder brother accused/Appellant Madan Singh, armed with 'KUDAL' (one sided pick axe), came there and told Abdul Salam that they will teach him lesson for demanding money from them. According to the prosecution, thereafter, both the accused/Appellants with the weapons armed, assaulted Abdul Salam, who received injuries and as a result of which he died. Accused/Appellants Madan Singh and Devendra Singh, thereafter threw the dead body in a canal and ran away. P.W.1 Abdul Aziz got lodged the first information report (Ext. A -1) with police station Haldwani, on 05 -08 -1986, at about 9:20 P.M. P.W.7 Head Constable Sultan Singh prepared the check report (Ext. A -12) and P.W. 9 Inspector Ramcharan Singh, in -charge of the police station, started investigation. A police team consisting of P.W. 6 Sub Inspector Vishram Singh along with Sub Inspector Omraj Singh and Constable Keshar Singh proceeded to the spot and prepared the inquest report (Ext. A -5) of the dead body, between 10:30 P.M. to 11:45 P.M., on the very day i.e. 05 -08 -1986. The dead body was found by the police party lying near a canal. The police also got prepared police form No. 33 (Ext. A -6); Police form No. 13 (Ext. A -7); sketch of the dead body (Ext. A -8) and letter (Ext. A -9) addressed to the Chief Medical Officer, requesting him for postmortem examination of the dead body. The dead body in a sealed condition was sent for postmortem examination. P.W.8 Dr. R.P. Pande conducted the postmortem examination on 06 -08 -1986 and prepared the autopsy report (Ext. A -14). After preparing site plan, interrogating the witnesses and on completion of the investigation, charge sheet (Ext. A -18) was submitted by P.W. 9 Ramcharan Singh, Investigating Officer, against both the accused Devendra Singh and Madan Singh.
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