- (1.) THIS appeal, pre ferred by the appellant under section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr. P. C), is directed against the judgment and order dated 25. 1. 1990 passed by Sessions Judge, Dehradun in ST. No. 56 of 1987, State v. Basanta and another and connected S. T. No. 160 of 1987, State v. Kaka @ Om Prakash, whereby the learned Sessions Judge has convicted the appellant/accused Basanta under section 304 (Part-II) of Indian Penal Code, 1860 (hereinafter to be referred as I. P. C.) and sentenced him to seven years' rigorous imprisonment under section 304 (Part-II) IPC. Appellant/accused Basanta was further convicted under section 323 IPC and was sentenced to three months' imprisonment. Both the sentences were directed to run concurrently. Appel lant/accused Ram Singh was convicted under section 323 IPC r/w section 34 of IPC, however instead of sentencing him, he was directed to be released on probation provided he executes a personal bond of Rs. 1500/- and furnishes two sureties each in the like amount, binding himself to keep peace and be of good behaviour for a pe riod of six months. Co-accused Kaka @ Om Prakash who was charged in connected S. T. No. 160/87, was acquitted of the charge punishable against him.
(2.) I have heard Sri Lokendra Dobhal, learned Counsel for the appellants and Sri Harish Pujari, learned Addl. G. A. for the State and perused the entire material avail able on record. In brief, the prosecution case is that complainant Om Prakash Garg (P. W. I) lodged a FIR stating therein that on 26. 6. 1986 at about 9:00 P. M. when he came back to his house from his shop, then he saw that on the road in front of house of Mewalal, appellants/accused Basanta and Ram Singh accompanying with one another person (whose name was not known to him), were committing Marpit with the wife of Mewalal namely Smt. Saraswati. When the noise was made by Smt. Saras wati, wife of Mewalal, then he (Om Prakash Garg), being a neighbourer, asked them not to quarrel. On this, all these three persons abused him. Meanwhile, com plainant's servant Sunil Tyagi also reached on the place of occurrence after hearing the noise. He (Sunil Tyagi) had also asked those three persons not to abuse, then all the three persons also abused him. When the complainant, Om Prakash Garg along with Sunil Tyagi asked these three persons not to abuse, then all these three persons attacked on them with Lathis. Appel lant/accused Basanta caused injury to Sunil Tyagi with Lathi. Due to these inju ries, Sunil Tyagi fell down on the ground and became unconscious. At that time, Raj Kumar, Duli Chand and other persons of locality also came there who also witnessed the incident and had intervened in between the quarrel. Thereafter, injured Sunil Tyagi was admitted at Government Hospital, Dehradun and he has lodged the FIR. With the same averments, the FIR was lodged by P. W. I Om Prakash Garg at P. S. Basant Vi-har, Dehradun on 27. 6. 1986 at 00:20 A. M. , the report is Ex. Ka-1 and the case was reg istered against the appellants/accused Basanta, Ram Singh and one another per son under section 308 IPC as Case Crime No. 354/86. On the basis of this report, Chik FIR was prepared by Head Moharrir Kripal Singh, i. e. Ex. Ka- 8. The entry was also made in the G. D. , the copy of G. D. is Ex. Ka-9. The investigation of the case was entrusted to P. W. ll S. I. S. N. Sharma. In jured Saraswati Devi was medically exam ined by P. W. 9 Dr. P. S. Butola on 26. 6. 1986 at 11:25 P. M. and injury report was pre pared, i. e. Ex. Ka-12. Injured Sunil Tyagi was also medically examined on the same day i. e. on 26. 6. 1986 at 11:00 P. M. at Doon Hospital and injury report in his respect was also prepared, i. e. Ex. Ka-13. Thereaf ter, on 30. 6. 1986, Sunil Tyagi had died in Doon hospital at 3:55 A. M. An information in this regard was sent by Doon Hospital to concerned police station and case was con verted to section 304 IPC from section 308 IPC. The entry in this regard was also made in the G. D. , the copy of G. D. is Ex. Ka-10. Thereafter, the inquest report on the body of Sunil Tyagi (deceased) was prepared by the I. O. on 30. 6. 1986, i. e. Ex. Ka-2. Photo Lash is Ex. Ka-3; Police Form No. 13 is Ex. Ka-4; the application for conducting the post-mortem of dead body of Sunil Tyagi was sent to CMO, Doon Hospital, De-hradun, that application is Ex. Ka-5; report sent by I. O. at P. S. Kotwali, Dehradun is Ex. Ka-6 and specimen of seal is Ex. Ka-7. The post-mortem of dead body of Sunil Tyagi was conducted on 30. 6. 1986 at 4:30 P. M. by P. W. 8 Dr. Vinod Kumar, the post mortem report is Ex. Ka-11. The I. O. during the course of investigation also inspected the place of occurrence and prepared the site plan i. e. Ex. Ka-15. After completing the investigation/the I. O. submitted the charge-sheet against the appellants/ac cused Basanta and Ram Singh in the Court under section 304 IPC, i. e. Ex. Ka-16. Against co- accused Kaka @ Om Prakash (acquitted by the Trial Court), who was not named in the FIR, a Titamma charge-sheet was sub mitted against him under section 304 IPC by P. W. 10 P. S. Mehra, i. e. Ex. Ka. 14. Learned Chief Judicial Magistrate, Dehradun committed the case to the Court of Sessions on 5. 6. 1987 after complying with the provisions of section 207 Cr. P. C.
(3.) ON 17. 11. 1987, learned Sessions Judge, Dehradun framed the charge against the appellant/accused Basanta un der sections 302 IPC and also under section 323/34 IPC. The charge was read over and explained to the appellant/accused Basanta, who pleaded not guilty and claimed to be tried. ON the same day i. e. on 17. 11. 1987, the charge was framed against the appellant/accused Ram Singh under section 302 r/w section 34 IPC and also under section 323 r/w section 34 IPC. The charge was also read over and explained to appellant/accused Ram Singh, who also pleaded not guilty and claimed to be tried. To prove its case, the prosecution has examined P. W. I Om Prakash, com plainant and eye-witness, P. W. 2 Saraswati Devi, eye-witness, P. W. 3 Raj Kumar, eyewitness, P. W. 4 Ram Lal, also an eye witness, P. W. 5 Constable Satish Chandra, who took the dead body of deceased Sunil Tyagi for conducting the post-mortem in sealed condition, P. W. 6 S. I. Jai Pal Singh, who prepared the inquest report and other necessary papers in respect of dead body of Sunil Tyagi, P. W. 7 Head Constable Kripal Singh, who prepared the Chik FIR and made necessary entry in the G. D. , P. W. 8 Dr. Vinod Kumar, who has conducted the autopsy on the dead body of Sunil Tyagi, P. W. 9 Dr. P. S. Butola, who has medically examined injured Smt. Saraswati Devi and Sunil Tyagi (deceased) on 26. 6. 1986, P. W. 10 S. I. P. S. Mehra, who filed Titamma charge-sheet against co-accused Om Prakash @ Kaka and P. W. 11 S. I. Sriniwas Sharma, I. O. of the case.;