- (1.) THIS criminal appeal, preferred un der Section 374 (2) of the Code of Crimi nal Procedure, 1973 (for brevity herein after Cr. P. C.), is directed against the judgment and order dated 21-12-1982, passed by learned Sessions Judge, 'chamoli, in Sessions Trial No. 19 of 1982, whereby appellants Ram Chandra and Ghanshyam have been convicted under Section 307 read with Section 34 of the Indian Penal Code, 1860 (for brevity hereihalter I. P. C.) and each one of them is sentenced to undergo rigor ous imprisonment for a period of four years.
(2.) HEARD learned counsel for the parties and perused the entire record. Prosecution story, in brief, is that appellant Ram Chandra and Ghanshyam are brothers, who are resi dent of village Lankhi, Patwari Circle Ghat, Tehsil and District Chamoli. Their cousin P. W. 3 Govind Ram (injured) was earlier in the service of the armed forces and his land used to be cultivated by the appellants. When he returned back to his village, (probably after retirement) a dispute arose between the cousins re lating to occupation of the land and they indulged in proceedings under Sec tion 107 7116 of Cr. PC. , in the year 1979. Later, Govind Ram became Surpanch (Head man) of the Van Panchayat in the year 1980, and he got challenged both the appellants under Section 4 / 5 of the U. P. Public Premises (Eviction of unauthorized occupants) Act, 1972. On 09-07-1982, Govind Ram appeared as witness against both the appellants, in said proceedings. On the next day i. e. 10-07-1982, P. W. 3 Govind Ram had an upset stomach and he went to ease out, at about 1:15 RM. , from his village towards Myakot Toke. Mean while, both the appellants reached there and appellant Ghanshyam threw a stone at Govind Ram, while appellant Ram Chandra struck him with a THAMALF (a heavy sharp edged weapon like Sickle ). Resultantly, Govind Ram fell down and got unconscious. At that point of time, P. W. 5 Bhaduli Devi was work ing in a nearby field and rushed to the spot, on hearing alarm raised by Govind Ram. She saw injured bleeding profusely and appellants Ghanshyam and Ram Chandra running away from the place of occurrence. She also raised alarm on which P. W. 4 Khilaph Singh (informant) and one Shiv Singh also reached there. P. W. 4 Khilaph Singh got lodged the First Information Report (Ext. A-8) on 11-07- 1982, with Patwari Ghat (In Uttaranchal hills, in certain areas, revenue officers are given police powers ). Before that he took injured Govind Ram to District Hospital at Gopeshwar and got him admitted there, at about 9:25 RM. , on the previous day i. e. 10-07-1982, The crime was investigated by P. W. 7 Sureshan and Dhondiyal, Patwari, who interrogated the witnesses, prepared site plan (Ext. A-14) and got sent the blood stained clothes, after taking into posses sion, to the chemical examiner. On com pletion of the investigation the Investi gating Officer submitted charge sheet, against both the accused / appellants for their trial for allegedly committing of fence punishable under Section 307 / 34 of I. P. C. On receipt of the charge sheet, it appears that the Chief Judicial Mag istrate concerned, after giving necessary copies to the accused persons, as re quired under Section 207 of the Cr. P. C. , committed the case to the court of Ses sions, for trial. Learned Sessions Judge, after hearing the prosecution and the defence framed charge of offence pun ishable under Section 307/34 of I. PC. , against both the accused Ram Chandra and Ghanshyam, who pleaded not guilty, and claimed to be tried. On this pros ecution got examined P. W. 1 Dr. D. N. Pauriyal (who medically examined the injured); P. W. 2 Dr. D. C. Awasthi (who X- rayed the injuries on the person of the injured); P. W. 3 Govind Ram (injured eyewitness); P. W. 4 Khilaph Singh (in formant); P. W. 5 Bhaduli Devi (eyewit ness); P. W. 6 Lachcham Singh (witness of recovery of THAMALI) and P. W. 7 Sureshanand Dhondiyal (Investigating Officer ).
(3.) ALL oral and documentary evi dence was put to the accused persons by the trial court under Section 313 of the Cr. P. C. , regarding which they alleged that the same is false and they have been falsely implicated in the crime, due to enmity. No evidence in defence ap pears to have been adduced by the de fence. After hearing the parties, the trial court found both the accused guilty of offence punishable under Section 307 /34 of I. RC. , and after hearing him on sentence, sentenced each one of them to rigorous imprisonment for a period of four years. Aggrieved by said judgment and order dated 21-12- 1982, both the convicts preferred this appeal before ALLahabad High Court in the year 1983, from where the same is received by this Court by way of transfer, under Section 35 of the U. P. Reorganization Act, 2000, for its disposal. Before further discussions, it is pertinent to mention here, the injuries found on the person of Govind Ram, recorded per Ext. A-l, by P. W. 1 Dr. D. N. Pauriyal, at about 9:30 R M. , on the day of incident i. e. 10- 07-1982. Fol lowing injuries were found on the person of the injured : (i) Lacerated wound 3cm x 0. 5cm x bone deep on left parietal prominence. (ii) Lacerated wound 4cm x 0. 5cm x bone deep on the top of head. (in) Incised wound 10cm x 3cm x muscle deep on upper part of left side of neck, 2cm below left lobule of ear. The wound was transversely situated. The mar gins were even, clean cut, well defined and inverted. (iv) Incised wound 3cm x 1,5cm x bone deep on the terminal pha lanx of right middle finger, palmer aspect. (v) Incised wound 2. 5cm x 1 cm x bone deep on the terminal pha lanx of right ring finger, palmer aspect. (vi) Incised wound 5cm x 1 cm x bone deep on the front of the upper third of right leg 6cm be low right knee joint. Wound was transverse and underneath bone was partly cut, transversely. (vii) Lacerated wound 1. 5cm x 1cm x muscle deep, on the upper third of left leg, on the front and slightly lateral 13cm below left knee joint. (viii) Incised wound 2cm x 0. 5cm x skin deep on the middle third of right leg 10cm below knee joint. (ix) Contusion 10cm x 6cm on right side of back over scapula. (x) Abrasions in an area of 12cm x 8cm left side back in the middle. (xi) Contusion 12cm x 10cm on the back of right forearm in the mid dle third. There was suspected fracture of underneath bone. (xii) Contusion over right side of chest 8cm x 6cm over the right fifth, sixth and seventh ribs, 8cm away from the middle of the sternum.;