N. B. Asthana, J. - (1.) THIS appeal has been directed against the judgment and order dated 10.12.90 passed by the then special Judge (D.A.A.)/Additional Sessions Judge, Lalitpur in Sessions Trial No. 29 of 1990 convicting appellant under Sections 324 and 435, I.P.C. and sentencing him to one year's rigorous imprisonment for the offence punishable under Section 324, I.P.C. and two years' rigorous imprisonment and Rs. 500 as fine for the offence under Section 435, I.P.C. In default of payment of fine he was to undergo further rigorous imprisonment for three months.
(2.) CHARGES were framed against the appellant under Sections .307, 324 and 435, I.P.C. The trial Court did not find him guilty of the offence punishable under Section 307, I.P.C. and acquitted him. He was convicted for other two offences. It is said that in the mid night of 29/30.1.90 he inflicted injuries with a sharp edged weapon upon P. W. 1 Razzak Ali in front of his house in Ajitpura, P.S. Kotwali, Lalitpur and also set fire to his two seater causing a loss of Rs. 10.000 to him. The prosecution story, in brief, is that about five or six months of the Incident in question Komal Chand, one of the neighbours of the complainant, received a letter asking him to pay Rs. 5,000 and threatening that otherwise his son would be murdered. This latter was sent by the appellant. Komal Chand could not pay this sum of Rs. 5,000 whereupon the appellant went to the house of Komal Chand and again threatened him Komal Chand told about it to the complainant whereupon the complainant and Komal Chand went to Police Station Kotwali and informed the Police about the threat of the appellant. The police started taking round of the house of the appellant upon which he became annoyed and stated bearing ill will against P.W. 1 Razzak.
(3.) IN the night of occurrence the appellant armed with his sword went to the house of Komal Chand and kicked the main door of his house in order to get it opened. Komal Chand did not open the (floor whereupon the appellant came to the house of P.W. 1. Razzak and wanted him to open the door. P.W. 1 Razzak did not open the door whereupon the appellant went to the house of one Ganja alias Bhagwandas, brought some cloth from his house and set the two seater of P.W. 1 Razzak on fire. IN order to save the two seater P.W. 1 Razzak armed with a lathi came out of the door. The appellant attacked him with the sword, which he was carrying, P.W. 1, Razzak took a turn with the result that the sword damaged his jerkin which he was wearing. He again attacked P.W. 1 Razzak with the result that he received injuries upon his face, hand and fingers. The appellant again attacked him. His sword hit the wall as a result of which it was broken. P.W. 1 Razzak finding opportunity caught hold of him, P.W. 2 Kapoor Chand also came there. These persons tied the appellant with a rope and then P.W. 1, Razzak took down the first information report Ex. Ka-1 of this incident and along with the appellant and the broken pieces of the sword reached P.S. Kotwali, Lalitpur at 1.00 P.M. where this report was handed over to P.W.4 constable Chhavilal. On the basis of Ex. Ka-1 constable Chhavilal prepared chik report Ex. Ka-3 made its entry in the general Diary and registered the case. The broken pieces of sword which were blood stained were also taken into custody at the Police Station, its memo Ex. Ka-6 was prepared. The appellant was put in the lock-up. P.W. 1 Razzak was sent for medical examination. P.W. 3 Dr. S. M. Singh examined him at the District Hospital, Lalitpur on 30.1.90 at 2.15 A.M. He found following injuries upon his person : 1. An incised wound at right side of face 4 cm. x 5 cm. bone deep. Fresh bleeding and gaping were present. Margins were clean cut. Toiling was also present. The injury was 1 cm. upwards from the angle of mouth. 2 An incised wound on right hand dorsal aspect 3 cm. x 1 cm. muscle deep. Gaping was present. Margins were clean cut fresh bleeding was present. This injury was 3 cm. below the wrist joint. 3. An incised wound on right middle finger dorsal aspect 1 cm. x .5 cm. muscle deep. Fresh bleeding was present Margins were clean cut. 4. An incised superficial wound on right index finger on dorsal aspect 5 cm. x .5 cm. Fresh bleeding was present. 5. An abraded traumatic swelling on right hand dorsal aspect 7 cm. x 9 cm. bright red in colour. ;