- (1.) 1. Appellant Diwan Singh has filed this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for brevity, hereinafter referred as Cr. P. C.) against the. judgment and order dated 24-07-1986 passed by Sessions Judge, Pithoragarh in Sessions Trial No. 14 of 1986 State Vs. Diwan Singh whereby the learned Sessions Judge has convicted the appellant under section 435 of the Indian Penal Code, 1860 (for brevity, hereinafter referred as IPC) and sen tenced him to two years' R. I. and a fine of Rs. 10007-and in default of payment of fine, shall further undergo R. I. for a period of six months. The appellant is also convicted under, section 436 read with Section 511 of the same Code and sentenced to two years' R. I. and a fine of Rs. 1500/- and in default of payment of fine, shall further undergo R. I. for a period of six months. The appellant is also convicted under section 324 IPC and sentenced to rigorous imprisonment for a period of one year and a fine of Rs. 500/- and in default of payment of fine, shall further undergo simple impris onment for a period of three months. The learned Sessions Judge directed that all the substantive sentences shall run concurrently. The learned Sessions Judge also passed an order that out of the fine levied, Rs. 1500/- shall be paid to the complainant Trilok Ram and Rs. 500/-shall be paid to the injured Smt. Kalawati Devi.
(2.) IN brief, the prosecution case is that Smt. Kalawati Devi (PW 5) is the wife of complainant Trilok Ram (PW4)and Pooran Ram is the father of Trilok Ram. Originally they belong to vil lage Kanku. They have no sufficient cul tivation and other source of income to meet their livelihood, hence they left their native place in search of their livelihood. Ultimately they reached village Udama. They are the landless agricultural labours and also artisan. Hence they began a new life. They do the artisan work for the villagers in the village. After some time Bahadur Ram (PW 1) told them that accused/appellant Diwan Singh was intending to dispose of his land situated at Natori Tok of Mitari Gaon with an old house. Pooran Ram contacted accused/ appellant in this connection. Accused Diwan Singh was agreed to sell the land and the house for Rs. 6000/ -. Pooran Ram immediately paid Rs. 5000/- on 10-09-1980 to accused with compromise to pay the balance of Rs. 1000/- within a week. Accused Diwan Singh executed an agreement to sell (Ext. Ka. 4) on that very day in his own hand writing in the presence of villagers. Thereafter on 14-09-1980 Diwan Singh has also received the balance amount of Rs. 1000/- and made an endorsement to this effect in the agreement to sell. He gave posses sion of the land and house to Pooran Ram and his family. Pooran Ram, at his end, demolished the old house and remodeled according to his need and requirement and started cultivation on the land purchased by him from the ac cused Diwan Singh. It is also alleged that after some time accused Diwan Singh has changed his mind. He refused to execute the sale deed in respect of transfer of the land in favour of Pooran Ram. He also planned to drive away Pooran Ram and his family from the village with a view to grab the land and house. For the abovesaid reason it is that on 04-10-1984 at 11. 00 a. m. in village Mitarigaon, Patti Kanalicheena, tehsil Didihat, district Pithoragarh, accused reached the field with a sword and lathi in his hand where Hansi Ram (PW 2) was plaughing the field of Pooran Ram on hire. He cut down the rope of the bullocks. He has threatened Hansi Ram to run away from the field. Hansi Ram, out of fear, run away and reached on the road. It is said that the accused thereafter set fire to 'luta' of Paral kept on the pear tree. When it was on fire he took a bundle of burning 'paral' from it and threw it at the door of Pooran Ram with intention to set his house on fire. It is also alleged that when Smt. Kalawati (PW 5) tried to extinguish the fire of the bundle to save her house from the fire, accused Diwan Singh with in tent to cause her death gave a blow of sword on her head which she saved with their hands and thereby she got the in jury on the index finger of her right hand. It is said that the said incident was witnessed by Bahadur Ram (PW 1) and Hansi Ram (PW 2) also. On the shout raised by the injured Smt. Kalawati Devi and the witnesses the ac cused run away towards his house. It has also stated that Trilok Ram son of Pooran Ram was working at the bridge of Samtada hence Pooran Ram went there to inform him'about the said incident. Trilok Ram came to his house. His wife Smt. Kalawati also told him about the incident. He thereafter brought his wife to Kanalicheena for medical treatment at about 4. 00 p. m. By that time the RH. C. was closed and the doctor had gone out. He then went to the Patwari headquarter and Quanungo circle. They too were out of their respective headquarters. By that time it has become very late, hence he returned back to his house. On the next day morning on 05-10-1984 he went to Pithoragarh where he got a complaint (Ext. Ka. 2) prepared by a petition writer in the Collectorate compound.
(3.) THE District Magistrate entrusted the complaint to Tehsildar, Didihat for necessary action. THE Tehsildar, at his end, sent it to the Patwari for prepara tion of the FIR and for necessary action. THE complairiant Trilok Ram himself brought the complaint from the District Magistrate to Tehsildar and from Tehsildar to Patwari Sri Chandra Shekhar Pant on 07-10-1984. THE Patwari read over the complaint (Ext. Ka. 2) to him, therefore, he gave another written report (Ext. Ka. 3) to Patwari. On the basis of this written report (Ext. Ka. 3) the Patwari prepared the chick FIR (Ext. Ka. 5) and registered the case under section 435,447, 307, 504 and 506 IPC against the accused Diwan Singh. The Patwari then started the in vestigation himself, recorded the state ment of the complainant then and there and directed him to go to his house. On the next day on 08-10-1984 he visited the scene of occurrence and at the in stance of the witness Pooran Ram (PW 6) inspected the spot and prepared the site plan (Ext. Ka. 6 ). In the course of the inspection of the scene of occurrence he took ashes therefrom in his posses sion, wrapped in a white cloth, sealed on the spot and prepared a memo (Ext. Ka. 7 ). He also prepared a Khasra Khulasa (Ext. Ka. 8) on the basis of the entries in the records. He has also re corded the statement of the witnesses Pooran Ram, Smt. Kalawati and Hansi Ram and then returned to his headquarter. On the next day on 09-10-1984 he went to the place of occurrence and recorded the statement of Bahadur Ram (PW 1 ).;