O. P. Mehrotra, J. - (1.) THE above mentioned two appeals have been filed by Pan Singh and Sher Singh against the order dated 26-9-1977 passed by Additional Sessions Judge, Almora convicting appellant SheT Singh under section 302 IPC and appellant Pan Singh under section 302/34 IPC and sentencing both of them to imprisonment for life. As these two appeals arise out of the same incident, they were heard together and are being disposed of by Common judgment.
(2.) DECEASED Gopal Singh was the father of complainant Bachche Singh (PW 1). The two appellants are real brothers being sons of Dungar Singh and reside in the same village viz. Mall, Police Station Almora, in which the deceased and other eye witnesses resided. This occurrence is said to have taken place on 19-7-1975 at 2 p.m. and the first information report was lodged by Bachche Singh PW 1 on the same day at 5.45 p. m. at Police Station, Almora, which was at a distance of 7 furlongs from the spot. According to the prosecution case, Bisan Singh, uncle of the complainant, was residing at Haldwani for the last, three or four years. Originally he had given his land and house to appellant Sher Singh but during the previous year before this occurrence Bisan Singh took back his house and land from appellant Sher Singh and gave it to the complainant. Since then, the land of Bisan Singh was being cultivated by the complainant and his father while house of Bisan Singh was lying vacant. Appellant Sher Singh bore enmity and ill-will against the complainant and his father on this count. On 19-7-1975 at about 2 p. m. when the complainant and his father Gopal Singh were standing in the Angan (court yard) of their house, appellant Sher Singh armed with a Daranti (Sickle) and appellant Pan Singh armed with a lathi arrived there, appellant Sher Singh told Gopal Singh that he was cultivating the land of Bisan Singh but his house had fallen in the rain and asked him as to why he was not repairing the same. Gopal Singh replied that he had another house and that he would get the house repaired whenever he felt its necessity. Thereupon, the two appellants started assaulting Gopal Singh with Lathi and Daranti. On the alarm raised by the complainant:, witnesses Pan Singh Pradhan (PW 4), Diwan Singh (PW 5), Ratan Singh and several other persons arrived there and saved Gopal Singh. As Gopal Singh had received bleeding injuries on the head, the complainant took him to the hospital on a Kandi.On the way he met Kisan Singh who scribed written report (Ex. Ka-1) at the dictation of Bachche Singh, who went to the Police Station, Almora and lodged the report at 5.45 P. M.
(3.) A case under section 307 IPC was registered and investigation was handed oyer to S. I. Sardar Singh (PW 9). Injured Gopal Singh was sent to the hospital where his injuries were examined by Dr. P. K. Tiwari (PW 2). He found the following injuries on his person : 1. Abrasion 1.0" x 1/2" on the Rt. fore arm posteriorly 4.00" from wrist point. 2. Incised wound muscle deep 1/2" x 1/4" on the scalp about 3.00" away from mid part of fore head, spindle shaped, clear cut, edges clean bleeding present, swelling present arround wound. 3. Abrasion 1/4" x 1/4" on the left wrist posterio laterally. Bleeding present seen. 4. Bruise on the left eyelid 1/4" x 1/2" towards the medial canthus. Blue in colour. Nature : Inj. No. 2 under observation (Adv. X-ray scalp), Taj. Nos.(1), (3) and (4)-Simple. Cause : Inj. 1 and 3 friction. Inj. 4 blunt object. Inj. 2 sharp object. Duration : 4-5 hrs (approx) fresh. Bleeding was present from right ear, The patient was omitting out food. The patient was received in unconscious state. His general condition was poor and irritable (vide Ex. Ka-2). As Gopal Singh was unconscious, his statement under section 161 CrPC or his dying declaration could not be recorded. He died on the night between 20/21-7-1975 at 1.10 a. m.;