- (1.) 1. The present appeal has been di rected against the judgment and order dated 03-02-1982 passed by Sri K. C. Singh, the then Sessions Judge, Pithoragarh in Sessions Trial No. 18 of 1977 convicting the appellants u/s 326/ 34 I. PC. and sentencing him to undergo three years imprisonment. Feeling ag grieved by the said judgment and order the present appeal has been preferred.
(2.) BRIEF facts for the disposal of this appeal are that on 19-10-1975 at about 10:00 a. m. the complainant Prahlad Singh went to the water tank of his vil lage at about 11:00 a. m. to wash his face and hand. The accused-appellants whose fields are nearby the tank started hurling abuses on the injured Prahlad Singh. The injured Prahlad Singh pro tested the same. Thereafter the father of the appellants thrown stone from the above which hit the injured on his head and it began to bleed. Then the father of the appellants as well as the appel lants came near to the injured and caught hold him. While the injured was trying to get himself released, he heard the voice of Raghubar Singh who was exhorting that the injured should be killed. Thereafter, Raghubar Singh-ac cused gave a blow with 'bariath' (a sharp edged weapon) as a result of which the injured suffered an injury in his right shoulder. Immediately, Harak Ram and Soban Ram arrived there and raised alarm. When the accused saw Harak Ram and Soban Ram coming to wards the place of occurrence the ac cused fled away from the spot. The injured was brought to the hospital by Trilok Singh cousin brother of the injured. He prepared the written report Ex. Ka. 2 and handed over to the patwari, Chamawat. Thereafter FIR was lodged by the brother of the injured on the next date at Lohaghat at about 3:00 p. m. Thereafter the investigation was conducted by the Patti Patwari. The in jured was examined by Dr. Prem Singh Chandalia-PW5 on the same evening at about 7:30 p. m. He was the medical officer. He found the following injuries on the person of the injured : 1. Incised wound 7" x 2" x bone deep on tip of right shoulder joint extending from acromion process towards scapula, severe bleeding was found present. Head of humerus was found exposed and vessels were found bleeding. The whole part was swollen and the movement of shoulder joint was not possible. Radial pulse was pulpable. The margins of the wound were sharp and blood clots blackish in colour were found present. 2. Incised wound 1" x l/2"x 1/4x" left perital bone, bleeding. 3. The injured complained of pain in his back but no mark of external injury was found present. The Doctor has opined that in jury No. 1 cannot be caused by some sharp edged weapon. Doctor referred the injured for the X-ray of his shoulder joint. The X-ray (Ex. Ka.-11) was con ducted by Dr. R Guha-PW8. It is the report of the doctor and it has been proved by the secondary evidence by Sri Marhai Singh Gangwar-PW9. The Doc tor has opined that dis-location was found on the shoulder. The Investigat ing Officer after completing the investi gation submitted the chargesheet before the court.
(3.) THE accused-appellants were charged u/s 307 read with 34 I. P. C. and they denied the charges levelled against them and claimed trial. During the pendency of the appeal, the appellant No. 2 Har Singh had died on 12-04-2003. THE appeal has already been abated against the appellant No. 2-Har Singh vide court's order dated 26-10-2005. The prosecution in support of his case produced the evidence of PW3-Prahlad Singh injured, PW4- Soban Ram who is alleged to be the eyewitness, PW1-Ram Singh is the witness of the recovery of a shirt and a towel and re covery memo thereof was prepared in his presence by Patwari on 21-10-1975. PW2- Trilok Singh, brother of the injured is the subscriber of the EI. R. and he has proved the F. I. R. PW5 Dr. Prem Singh Chandalia proved the medical certificate produced by the prosecution in support of the injuries of Prahlad Singh-injured. PW9-Sri Marhai Singh Gangwar who is X-Ray Technician, Distt. Hospital Pilibhit has proved the X-ray of the injured. PW/-Patwari Kalyan Singh has investi gated the case and submitted the chargesheet. PW8-Dr. R Guha was also produced by the prosecution to prove that the injury No. 1 of the injured could be sustained by sharp edged weapon, PW6-Constable Kharak Singh has been examined to prove the loss of case di ary part (1) in which the statement u/s 161 Cr. P. C. of the witnesses had been recorded. He has stated that he tried to trace out the duplicate case diary but he could not find out and he proved the loss of the part (1) case diary.;