Surendra Vikram Singh Rathore, J. - (1.) CHALLENGE in the instant criminal appeal is the judgment and order dated 09.03.2011 passed by Additional Sessions Judge, Court No. 5, Unnao in Sessions Trial No. 274 of 2010, arising out of Case Crime No. 3179 of 2009, Police Station Ganga Ghat, District Unnao, whereby the appellant Chandan was convicted for the offence under Section 308 IPC and was sentenced to undergo rigorous imprisonment for a period of three years and also with fine of Rs. 2,000/ - with default stipulation of three months' additional imprisonment. Along with the said sessions trial, Sessions Trial No. 568 of 2010 (State vs. Sonu), which also arose out of the same case crime number, was also tried but by the impugned judgment, co -accused Sonu was acquitted of the charges levelled against him. By the impugned judgment, another accused Raj Kumar was also convicted but during pendency of this appeal, Raj Kumar died and his appeal was abated vide order dated 10.12.2014. Now, only the case of present appellant Chandan is before this Court.
(2.) IN this case, on the basis of written report submitted by the injured complainant Shambhu Dayal, a NCR was registered on 13.12.2008 at 08.45 AM alleging there in that the appellant Chandan, Raj Kumar and one unknown person used to cross the house of the complainant under intoxication and they used filthy language at that time, for which the complainant asked them not to do so. But he was abused and was also threatened by the accused persons. On 12.12.2008 in the night in between 7.30 - 8.00 PM the complainant was warming himself in front of the fire. One Jagdish and Rashid were also accompanying him. Meanwhile, Raj Kumar and Chandan reached there along with one unknown person and gave blows from backside on the head of the injured with lathi and danda and caused him injuries. The injured was medically examined at U.S.D. District Hospital, Unnao on 12.12.2008 at 11.00 PM and following injury was found on his head: - "Incised wound 5.00 cm x 1/2 cm x muscle deep on left side top of head 10.00 cm above left ear. Fresh bleeding present. Duration was fresh. Nature of the injury was reported to be simple in nature." This medical examination took place at U.S.D. District Hospital, Unnao, but thereafter the injured again went to PHC Shukla Ganj where his injury was again examined and only one stitch wound was reported and X -ray was advised. In the X -ray report, fracture of parietal bone was found. Thereafter, the complainant moved an application on 23.12.2008 for conversion of the case and on the basis of the same. On 26.12.2008, the case was converted under Section 308 IPC. The Investigating Officer inspected the place of occurrence and after concluding the investigation, charge sheet was filed. The case of the defence was that the appellant was a peace loving man and the complainant side was also manned by ex -army personnel, who under intoxication raided the house of Raj Kumar where some altercation took place. While coming back, the injured fell down and
(3.) IN order to prove its case, the prosecution has examined PW -1 Constable Suresh Singh, who has proved Chik Report and G.D. of this case as secondary evidence, PW -2 Complainant Shambhu Dayal the injured, PW -3 Jagdish -the witness mentioned in the first information report, PW -4 Dr. Tejveer Singh, who subsequently medically examined the injured at PHC, PW -5 SI Suresh Singh -the Investigating Officer of this case, PW -6 Dr. P.V.S. Chauhan, who initially medically examined the injured and PW -7 Dr. V.K. Sharma, who has conducted X -ray of the injured.;