Hon'ble Arvind Kumar Mishra-I,J.

1. Heard Sri Santosh Kumar Tiwari, learned counsel for the appellant Kaleem, learned AGA for the State and perused the record.

2. By way of instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 24.12.1986 passed by the Sessions Judge, Lalitpur, in Session Trial No.99 of 1986 State Vs. Kaleem, arising out of Case Crime No.44 of 1985 under Section 307 IPC, Police Station- Jakhaura, District- Lalitpur, whereby the appellant has been sentenced to undergo fine years rigorous imprisonment.

3. Since the order of conviction passed by the learned trial Judge has not been assailed and has been admitted to the appellant, therefore, it would not be in the fitness of things that a detailed narration of the incident is sketched as that would serve no worthy purpose. Though the entire facts and circumstances of the case have been taken into consideration and described in the impugned judgment but for the proper understanding of the case, it would be feasible, in the interest of justice that a mention of the relevant facts is made.

4. The facts leading up to this appeal appear to be, as discernible, from the record and particularly the first information report lodged by the informant Babu Singh, father of the injured Balvir Singh on 04.06.1985 at 12:15 p.m., at Police Station Kowali, District Lalitpur, at Case Crime No. Nil of 1985, under Sections 308, 504, 506 IPC as the matter was connected with the territorial jurisdiction of Police Station Jakhaura, District Lalitpur, with the allegations, inter-alia that the informant's son Vir Singh, who used to work at shop, was abused and beaten by the accused-appellant. In the meanwhile, the informant's another son Balvir Singh arrived on the spot and tried to save his brother when the accused-appellant assaulted him (Balvir Singh) with iron rod who became unconscious and fell down on the ground. The incident was witnessed by Ashok Kumar Gupta and Dinesh Kumar Gangele who intervened and saved Balvir Singh and put him in a bus and took him to the district hospital, Lalitpur where he was admitted and given medical treatment. After some time, the police also arrived on the spot. In the meanwhile, the accused-appellant escaped away from the scene. Request was made for lodging the report. It was also stated in the report that the incident took place around 8:00 a.m. This report Ext. Ka-1.

5. As per testimony of Suresh Chandra Srivastava PW-6 - the Investigating Officer - this report though lodged initially at Police Station Kotwali, District Lalitpur was transferred to Police Station Jakhaura, District Lalitpur. Since the matter fell within the limits of aforesaid police station, therefore, the investigation was entrusted to the Investigating Officer, Suresh Chandra Srivastava and a separate case crime number was allotted to the case.

6. After lodging of the first information report, the injured Balvir Singh was medically examined by Dr. S.S. Singhal PW-5, at District Hospital, Lalitpur, on 04.06.1985 at 9:35 a.m. who noted following injuries:

"1. Lacerated wound 10 cm x 0.5 cm x bone deep on top of right side of 12 cm above the top of right ear, margin irregular, bleeding present."

7. Injury was kept under observation. X-ray was advised. It was stated that injury was caused by blunt object and duration was fresh. It was also noted that the patient was in semiconscious state and was admitted in the hospital and referred to the Surgeon. The injury report is Ext. Ka-4.

8. The x-ray examination of the skull of the injured Balvir Singh was done and report was obtained wherein fracture of right parietal bone with description of no callus seen noted. The x-ray report is Ext. Ka-5

9. As the investigation progressed and the Investigation Officer recorded statement of various prosecution witnesses including the informant and took note of the contents of check FIR and relevant entry made in the general dia