PRAFULLA C.PANT, J. - (1.) THIS appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is di­rected against the judgment and order dated 05-03-2002, passed by learned Ses­sions Judge, Almora, in Sessions Trial No. 37 of 1998, whereby accused/appellant Puran Singh, has been convicted under Section 302 of Indian Penal Code, 1860 (herein after referred as I.P.C.) and sen­tenced to imprisonment for life. He is fur­ther directed to pay fine of Rs. 5,000/- in default of payment of which he is further required to undergo rigorous imprisonment for a period of one year.
(2.) HEARD learned counsel for the par­ties and perused the lower court record. Prosecution story in brief is that on 22-01-1998, at about 8:00 a.m., Bacchi Singh (deceased) was doing some con­struction work in his house in Village Daili, and raising wall adjoining to the house of accused/appellant Puran Singh to which accused/appellant protested. This led the two in heated exchange of words. There­after Puran Singh gave 3-4 blows with a hammer on the head of Bacchi Singh, who fell down and died of the injuries. The First Information Report (Ext. A-1) was lodged by P.W.1 Balam Singh (brother of the de­ceased) on the very day i.e. 22-01-1998 at 11:45 a.m. with Patwari Jalna. (In the interior hills of Uttarakhand revenue offi­cials are given police powers under U.P. Government Notification No. 494/VIII-418-16, dated 07-03-1916). P.W.6 Bhuwan Chandra Kandpal. Patwari, pre­pared check report (Ext. A-3) on the basis of First Information Report (Ext. A-1) lodged by Balam Singh (P. W. 1), and reg­istered crime No. 01 of 1998 against accused Puran Singh relating to offence punishable under Section 302 I.P.C. Thereafter Investigating Officer (P.W. 6) Bhuwan Chandra Kandpal, proceeded to Village Daili, where the incident had taken place and took the dead body of Bacchi Singh in his possession and prepared in­quest report (Ext. A-5) on the very date i.e. 22-01 -1998 at 1:00 p.m. He also prepared sketch of the dead body (Ext. A-9), sample seal (Ext. A-7), and other nec­essary papers and sent the dead body in a sealed condition for post mortem exami­nation. P.W.5 Dr. G.C. Pandey. con­ducted post mortem examination on the dead body of Bacchi Singh on 23-01-1998 at 12:45 p.m. He recorded as many as 9 ante mortem injuries on the body, and prepared autopsy report (Ext. A-2). The medical officer opined that the deceased had died on account of coma and shock due to ante mortem injuries. The Investi­gating Officer recovered the hammer and other articles (generally used by mason) found on the spot and prepared memo­randum (Ext. A-6). He also collected blood stained clothes of the deceased Bacchi Singh and prepared memorandum (Ext. A-10). The articles recovered from the spot were sent for chemical examina­tion to the Forensic Laboratory, Agra, from where report (Ext. A-12) was received in which it has been found that in the articles and clothes sent for post mortem examination contained human blood. After interrogating the witnesses, and com­pleting the investigation, the Investigating Officer submitted charge sheet (Ext. A-11) for trial of accused Puran Singh relating to offence punishable under Section 302 I.P.C.
(3.) THE Magistrate, on receipt of the charge sheet, after giving necessary cop­ies to the accused, as required under Sec­tion 207 of Cr.P.C., committed the case to the Court of Sessions, for trial. Learned Sessions Judge, Almora, after hearing the -parties on 04-08-1999, framed charge of offence punishable under Section 302 I.P.C. against the accused Puran Singh, who pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Balam Singh (informant and brother of the deceased), P.W.2 Chatur Singh (who reached at the spot after the incident), P.W.3 Sundar Singh (eye-wit­ness and son of the deceased), P.W.4 Pratap Singh (who also reached at the spot after the incident), P.W.5 Dr. G.C. Pandey (who conducted postmortem ex­amination on the dead body of the de­ceased) and P.W. 6 B.C. Kandpal (Patwari, who investigated the crime). All the oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which he alleged the same to be false. While replying the ques­tions, under Section 313 Cr.P.C., accused Puran Singh submitted that infact at the time of incident when he protested against Bacchi Singh (deceased) as to why he is letting the stones fall from his side towards his (Puran Singh's) house, deceased Bacchi Singh gave a blow with BASULA (carpenter's axe) on the head of the ac­cused, and in private defence, the accused retorted by giving blows with a hammer on the person of Bacchi Singh. As such, the accused has come up with a clear case of private defence. Not only this, the ac­cused has adduced evidence in defence by producing three witnesses D.W. 1 Dr. K.P. Kaniyal (a medical officer of a government hospital, who examined the injuries of the accused and prepared report - Ext. B-1), D.W. 2 Puran Singh (accused himself) after seeking permission under Section 315 Cr.P.C. and D.W. 3 Dev Singh. The trial court after hearing the parties, found ac­cused Puran Singh guilty of charge of of­fence punishable under Section 302 I.P.C. After hearing on sentence, the trial court sentenced the convict to imprisonment for life and also directed to pay fine of Rs. 5,000/- in default of payment of which convict was required to undergo rigorous imprisonment for period of one year. Ag­grieved by said judgment and order dated 05-03-2002, passed by learned Sessions Judge, Almora, in Sessions Trial No. 37 of 1998, this appeal is preferred by the appellant.;