Surya Prasad, J. - (1.) This is a Criminal appeal against the judgment and order dated 2-9-1988 passed by the then V Additional Sessions Judge. Saharanpur in S. T. No. 214 of 1985 State v. Hari Chand and others under Sections 302/323, I.P.C., P. S. Deoband District Saharanpur convicting and sentencing the accused appellants under Section 304 (2) read with Section 34, I.P.C. to five years rigorous imprisonment each and further convicting and sentencing the accused appellants under Section 323 read with Section 34, I.P.C. to simple imprisonment for three months each.
(2.) The prosecution case briefly stated is that on 24-9-1983 at about 6.00 p. m. Smt. Somi, her husband Kurdi and son Vinod were sitting at their house. The younger son named Chhotey of Smt. Somi was playing out side. Hari Chand, his sons Suresh and Manga came to the house of Smt Somi and started saying that her son Chhotey was abusing them, whereupon her husband Kurdi expressed that Chhotey was a small boy, how he could abuse them. Thereupon they started assaulting Kurdi with Lathi. Vinod rushed to save his father Kurdi, whereupon Manga assaulted him with a Ballam, Hari Chand and Suresh had Lathis in their hands. Smt. Somi raised alarm hearing which Ghissu, Manpal and Subhash Chandra who were residents of her village itself rushed to the place of occurrence and witnessed the incident. Smt. Somi and certain others took Kurdi to the Deoband hospital. Her son Vinod was examined and given medical aid there. The doctor concerned, however, advised them to take Kurdi to the Saharanpur District Hospital as his condition was quite serious. Consequently he was taken by them and admitted to that hospital. Smt. Somi was looking after her husband Kurdi and son Vinod, whose conditions were serious and therefore she could not lodge the report at the Police Station before 26-9-1983, when she lodged it. A chik was prepared on the basis of her written report and a case was registered against the accused-appellants. Kurdi subsequently died. After the completion of the investigation into the case a charge sheet was submitted against the accused-appellants.
(3.) The prosecution examined Smt. Somi PW 1, Vinod PW 2, Ghissu PW 3, Dr. Pradeep Singh PW 4, Dr. Virendra Nath PW 5, Vinod Kumar, Investigating officer PW 6, Dr. S. K. Sharma PW 7 and Ram Mehar Singh P W 8 and has relied upon certain documents in support of its case.;