(1.) This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 26.07.2000, passed by Learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 26 of 1996, whereby said court has convicted the accused/appellant Diwan Singh under section 304 Part-2 of I.P.C., and sentenced him to rigorous imprisonment for a period of five years. He has been further convicted under section 323/34 of I.P.C, and sentenced to rigorous imprisonment for a period of six months. Other accused/appellants Jaipal Singh and Veer Singh have also been convicted, and sentenced under section 323/34 of I.P.C., and sentenced to rigorous imprisonment for a period of six months. (Apart from this accused Mohan Singh and Shoorvir Singh appear to have also been convicted under section 323/34 of I.P.C, but they are not appellants before this Court).
(2.) Heard learned counsel for the appellants, and learned counsel for the State, and perused the lower court record.
(3.) Prosecution story, in brief, is that on 17.10.1994, at about 8.30 pm., Parwan Singh (deceased) alongwith PW3 Kukru Mistri was sitting in tea stall of Satya Singh (PW1). Accused Diwan Singh, Jaipal Singh and Veer Singh alongwith co-accused Shoorvir Singh and Mohan Singh came there, and offered to sell five bottles of crude liquor at the rate of Rs. 45 per bottle, but PW1 Satya Singh refused to buy the same. Thereafter, the five accused of made same offer to Parwan Singh, but he also refused to buy the crude (country made) liquor. Parwan Singh left the shop of Satya Singh, and went to his own shop situated in Ratnagod. All the five accused followed him and dragged him (Parwan Singh) from his shop (tea stall). They started quarrelling with Parwan Singh. On hearing noise, PW1 Satya Singh came out from the shop alongwith Kukru Mistri (Pw3) and attempted to intervene, but accused Diwan Singh, who was armed with a MOOSAL (pestle) assaulted Parwan Singh and killed him. The accused/appellants thereafter allegedly voluntarily caused hurt to PW1 Satya Singh. On the next day (18.10.1994) at about 11.00 am., PW4 Sobat Singh (son of the deceased) gave First Information Report (Ex-A1) at Police Station Tehri, on the basis of which crime no. 154 of 1994 was registered relating to offence punishable under section 302 of I.P.C, against accused Diwan Singh, Shoorvir Singh, Mohan Singh, Jaipal Singh and Veer Singh. The crime was investigated by PW9 Dharamveer Singh, who added sections 147, 148 and 307/34 with 302 of I.P.C. Dead body of Parwan Singh was taken into custody by police on 18.10.1994, and inquest report (Ex-A8) was prepared. Police further prepared Police Form No. 13 (Ex-A9), sketch of the dead body (Ex-A10) and other necessary papers and sent dead body for post mortem examination. PW8 Dr. V.C.Pathak conducted post mortem examination on the dead body of Parwan Singh on 19.10.1994, at 11.00 a.m., and recorded three ante mortem injuries in autopsy report (Ex-A6). The said Medical Officer opined that deceased had died of coma, as a result of ante mortem head injury caused by blow of hard blunt object. After interrogating the witnesses, and inspecting the spot, the Investigating Officer submitted charge sheet (ExA5) against the accused/appellants Diwan Singh, Shoorvir Singh, Mohan Singh, Jaipal Singh and Veer Singh, for their trial in respect of offences punishable under section 147, 148, 307, 325, 302 read with section 34 of I.P.C.;