Decided on July 28,1983

STATE Respondents


CHARANJIT TALWAR, J. - (1.)THIS is an appeal filed by Surinder Kumar and Shori Lal challenging their conviction and sentence under Section 325 read with section 34 of the Indian Penal Code (hereinafter referred as 'the Code') by Shri H.C. Goel, Additional Sessions Judge, Delhi. The appellant Surinder Kumar has been awarded four years R.I. and fine of Rs. 500/-. His father Shori Lal, who was his co accused has been released on probation.
(2.)THE facts of the prosecution case have been noticed in detail by the learned trial Court. No useful purpose would be served by repeating them. The main findings on which the conviction has been based are :
1) that on October 18, 1978, during an altercation Shori Lal told his son Surinder Kumar to hit Rattan lal, since deceased on his head with a stone. This was in furtherance of the common intention of the two accused. 2) Surinder Kumar hit him with a big stone weighting 2-1/2 Kgs. causing injury on his head which led to the death of Rattan Lal on 22.10.78; 3) that the prosecution witness PW1 Gulshan Kumar, PW3 Garib Dass and PW6 Gulshan Kumar were eye witness to the occurrence; 4) that the report lodged by Durga Dass at police post Nabi Karim at 8.5 a.m. on October 18, 1978 could not be treated as the first information report; 5) that the FIR Ex. PW/A which was registered at police station Pahar Ganj after about 9-1/2 hours of the occurrence on the basis of the statement of PW1 Gulshan Kumar son of the injured was valid.

At the outset I may note here that Rattan Lal was admitted in the Willingdon Hospital at 10.30 a.m. on October 18, 1978. The name of the relative accompanying him has been shown in the report Ex. PW/7 A as Garib Dass. The injury described therein is "a stitched wound over the left parietal region on the forhead 3.5 c.m. not bleeding". It was further noticed by Dr. V.K. Kapur who had examined Rattan Lal that the duration of the injury was 4 to 6 hours and that it was caused by a blunt weapon. The patient was unconscious.

(3.)THE learned trial Court while noticing the fact that the injured was admitted with a stitched wound has not given any finding as to when and by whom the wound was stitched prior to the admission of the injured in the hospital. Another fact which was has been noticed is that Shori Lal was also admitted in the same hospital on that very day with simple injuries. There is no finding regarding explanation, if any, of the prosecution about that injury also.

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