- (1.) THIS appeal preferred, under section 374 (2) of the Criminal Procedure Code, 1973 (hereinafter to be referred as Cr. P. C.), is directed against the judgment and order dated 20-8-1990 passed by Ad ditional Sessions Judge, Nainital in Ses sions Trial No. 56/1989, State Vs. Kundan Singh & others, whereby the learned Additional Sessions Judge has convicted the appellant-accused persons u/s 342, 323 and 308 of The Indian Penal Code, 1860 (hereinafter to be referred as I. P. C.) by which the learned Additional Sessions Judge has convicted the accused appellants for the offence punishable u/s 342, 323 and 308 I. PC. and convicted them to undergo rigorous imprisonment -for a period of three months' u/s 342-I. P. C. , three months' R. I. u/s 323 I. P. C. and four years' R. I. u/s 308 I. P. C. It was also directed that all these sentences shall run concurrently.
(2.) I have heard Sri Prem Kaushal, Adv. holding brief of Sri R. S. Sammal, learned counsel for the appellants and Sri M. A. Khan, learned Brief Holder for the State. In brief the prosecution case is that PW. 1 Deep Chandra Upreti and PW. 2 Hira Singh- complainant were on a patrol ling duty in the Dolly Forest Range on 26-07-1988. When they were coming back from the forest at about 7:00 RM. on 26-7-1988 then from the north side of the Baur Khatta, at Chauraha, four persons, including the appellant/accused, namely-Kundan Singh, Chandan Singh, Yusuf and one another person Nain Singh had sur rounded them and after tying them with the rope they had taken them about 4 kms. to the eastern direction and near the bushes of bamboo the appellant/accused persons along with one another Nain Singh had caused the injuries to Deep Chandra and Hira Singh with PATAL & LATHIES. Deep Chandra got seriously in jured with these injuries inflicted by the assailants but the complainant Hira Singh had escaped from there and he informed the matter to the forest staff of Baur Khatta. Then the officials of the Forest Department had searched Deep Chandra-watcher in the forest and found him in injured condition who was unconscious also at that time and was taken to Civil Hospital, Haldwani. At the first phase of the incident the appellant-accused persons and Nain Singh had forcibly took signa tures of Deep Chandra on some blank pa pers. Annexing the medical report, Hira Singh has lodged a report Ext. Ka-1 in the Police Station Lalkuan. The injury report which was submitted along, with the F. I. R. is Ext. Ka-2. On the basis of this F. I. R. Chick FI. R. Ext. Ka-5 was prepared by the Head Moharir Sri Chandra Kiran Tyagi and on 27-07-1988 at 7:35 A. M. a Case Crime No. 205/88 in the Police Station, Lalkuan under section 342, 323 & 308 I. P. C. and 26 of the Forest Act, was reg istered. The entry was made in the G. D. by the Head Moharir, a copy of the G. D. Ext. Ka-6. The investigation of this case was entrusted to S. I. G. S. Bisht. During the course of the investigation, the I. O. had prepared a site-plan of the place of occurrence i. e. Ext. Ka-3 and he also re corded the statements of the witnesses. After completing the investigation, he had submitted the charge sheet Ext. Ka-4, against the appellant/accused persons-Kundan Singh, and Yusuf u/s 308 and 323 I. P. C. No charge sheet was filed against the co-accused- Nain Singh. On 13-02-1989 the then Munsif Magistrate, Haldwani committed the case to the Court of Sessions after complying with the provisions of Section 207 Cr. PC.
(3.) LEARNED Sessions Judge, Nainital transferred the trial to the court of Addi tional Sessions Judge for its hearing and disposal according to law. Learned Special Judge/additional Sessions Judge, Nainital on 20-04-1989 framed the charge u/s 342, 308 and 323 I. P. C. against the appellant-accused per sons- Kunadan Singh, Chandan Singh and Yusuf. The charge was read over and explained to the appellant-accused persons, who pleaded not guilty and claimed to be tried.;