- (1.) THIS appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (for brevity herein after referred as Cr. P. C.) is directed against the judgment and order dated 04-11-1999, passed by learned Special Judge (E. G. Act)/additional Sessions Judge, Nainital in Ses sions Trial No. 310 of 1995 and Ses sions Trial No. 306 of 1995, whereby appellant Ghur Began alias Raj Kumar, has been convicted under Section 307 of Indian Penal Code, 1960 (for brevity herein after referred as I. P. C.), and ap pellant Paramanand is convicted under Section 307 read with Section 34. I. P. C. and each one of them is sentenced to undergo rigorous imprisonment for five years and also to pay fine of Rs. 2. 000/ - in default of payment of which the de faulter is directed to undergo simple im prisonment for two months.
(2.) HEARD learned counsel for the parties and perused the record. Prosecution story, in brief, is that on 07-08-1993, at about 8:00 P. M. , complainant's son Tej Narayan (P. W. 2), had a quarrel with appellant Ghur Be gan alias Raj Kumar. The said incident, took place in village Anandpur within the limits of Police Station Kichha, Dis trict Udham Singh Nagar. When the quarrel aggravated, appellant Ghur Be gan alias Raj Kumar, gave a blow of knife on the neck of Tej Narayan. While said appellant was giving blow, appellant Paramanand, caught hold of Tej Narayan so that appellant Ghur Began alias Raj Kumar may strike the blow. P. W. 1 Lal Mohar (informant), father of the injured, came out of his house on hearing the alarm, and simultaneously P. W. 3 Ram Narayan, P. W. 4 Ram Bahadur, P. W. 5 Bhudev Saraswat, neighbours, reached there and witnessed that accused persons fleeing from the scene of occurrence after commission of crime. P. W. 1 Lal Mohar, took the in jured immediately to hospital and lodged First Information Report (Ext. A-l) with the police at 10:50 P. M. in that very night. P. W. 7 Jwala Prasad Sub Inspec tor, investigated the crime. P. W. 8 Dr. J. S. Pangti, examined the injuries on the per son of Tej Narayan in the hospital. On completion of the investigation, a charge sheet (Ext. A-11) was submitted by In vestigating Officer against Paramanand and later on another charge sheet (Ext. A-5) against appellant Ghur Began alias Raj Kumar (as he was absconder earlier ). On receipt of the charge sheet, it appears that the Magistrate con cerned, after giving necessary copies to the accused, as required under Section 207 of Cr. PC. , committed the case for trial, to the Court of Sessions Judge. After hearing the prosecution and the defence, learned Sessions Judge, framed charge of offence punishable under Sec tion 307 I. PC. against the accused Ghur Began alias Raj Kumar and that of of fence punishable under Section 307/34 I. P. C. against accused Paramanand. Both the accused, pleaded not guilty and claimed to be tried. On this, pros ecution got examined P. W. 1 Lal Mohar (informant), P. W. 2 Tej Narayan P. W. 3 Ram Narayan (hostile), P. W. 4 Ram Bahadur (hostile), PW. 5 Mahavir (hos tile), P. W. 6 Sub-Inspector Bhudev Saraswat, who initially investigated the crime, P. W. 7 Sub-Inspector Jwala Prasad, completed the investigation and RW; 8 Dr. J. S. Pangti, who examined the injuries on the person of the injured. The entire oral and documentary evi dence was put to the accused persons under Section 313 Cr. P. C. in reply to which they alleged the same to be false. The trial court, after hearing the parties, found appellant Ghur Began alias Raj Kumar, guilty of offence punishable un der Section 307 I. P. C. and appellant Parmanand guilty of offence punishable under Section 307/34 I. P. C. and after hearing on sentence, sentenced each one of the convicts to rigorous imprisonment for a period of five years and also to pay fine of Rs. 2. 000/- in default of payment of which the defaulter was directed to undergo simple imprisonment for two months. Aggrieved by said judgment and order dated 04-11-1999, this appeal was preferred before Allahabad High Court in the year 1999, from where it has been received by transfer to this Court, under Section 35 of U. P. Reorganisation Act, 2000, for its disposal.
(3.) BEFORE further discussions, it is pertinent to mention here the injuries found on the person of injured Tej Narayan on the date of the incident, as recorded in Ext. A-12 by P. W. 8 Dr. J. S. Pangti. The injuries recorded, are as un der : 1. Incised wound curved 15cm x 2cm over front of neck, under line muscle, vein, cut thrachea, air coming through wound, be tween chin and Momubru bone, profuse bleeding present from the wound. 2. Incised wound 2cm x cm x muscle deep between index and thumb of left hand, profuse bleeding from wound, third ves sel also cut under the wound. 3. Abrasion 1cm x cm over tit tle finger of right hand, bleeding from wound present. P. W. 1 Lal Mohar, informed has stated on oath that injured Tej Narayan is his son, who has enmity with the ac cused/appellant Paramanand. The wit ness states that on the date of incident, at about 8:00 P. M. appellants Paramanand and Ghur Began, caused knife injury on the neck of his son Tej Narayan. This witness has further stated that he lodged First Information Report (Ext. A-l ). In the cross examination, the witness states that he reached at the spot on hearing alarm of some boys that knife blow has been struck on his son. This witness admits in the cross exami nation that by the time he reached the place of occurrence, the accused persons had fled from the scene.;