Decided on August 02,1991

DEVRAJ Appellant


Bhawani Singh, J. - (1.) This appeal is directed against the decision of Additional Sessions Judge (I), Shimla, in Sessions Trial No. II-S/7 of 1988/ 107/2 of 87, decided on 25-10-1988. The accused were prosecuted for offences under Sections 302/201 read with Section 34 of the Indian Penal Code. They were alternatively charged under Section 306 read with Section 34 of the Indian Penal Code. The trial resulted in their acquittal under Sections 302/201 of the Indian Penal Code. However, they have been convicted for an offence under Section 306 read with Section 34 of the Indian Penal Code and sentenced to Rigorous Imprisonment for two years and a fine of Rs. 5,000/- in each case.
(2.) The prosecution case, briefly, is that the deceased, who was living in Shimla with his brother Mehar Chand, was a partner in business with the two accused. The business was being carried on under the name and style of Krishna Provision Store, Khalini, since 1979. The relations between the deceased and the accused became strained after April, 1986, on account of the taking away of money from the partnership business by the accused for the purchase of a bus and failure to render the accounts of the profits qua the truck that was purchased in the year 1982 in the name of Tulsi Ram, father of the accused, out of the money from the shop named above. Although the accused had assured the deceased that they would purchase another truck in his name, but instead of doing so, a bus was purchased out of the partnership profits, that, too, in their own name and sty led as Chintpurni Travels.
(3.) On account of mental depression, the deceased fell ill and left Shimla in July, 1986, for his village Niar in District Kangra. He came to Shimla on October 28, 1986, in response to the telephonic message of accused Dev Raj. After remaining in Shimla for 213 days, he told his brother Mehar Chand that the shop had been emptied by the accused and there was no intention on the part of the accused to give him any money out of the joint business. On the night of November 3, 1986, Mehar Chand collected key of the house from the deceased at the shop and prepared the meals. The deceased came there at about 10 P.M. and took his meals only on the insistence of Mehar Chand. He was depressed and his apprehension was that he would not be given any money by the accused out of the joint business. He also expressed his desire to discontinue the business with the accused and thought of starting his own business and for this purpose he wanted Mehar Chand to search a shop near about Bishop Cotton School, Shimla, where certain shops were under construction. The deceased also disclosed that he would go to the accused to settle the accounts on November 10, 1986.;

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