JUDGMENT :

1. Heard Sri Surendra Nath Yadav, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned A.G.A. for the State.

2. This criminal appeal has been filed against the judgment and order dated 14.03.1990 passed by 1st Additional Sessions Judge, Bulandshahr, in Sessions Trial No. 368 of 1988, State vs. Raj Kumar and Another arising out of Case Crime No. 19 of 1983, under Sections 323 and 307 I.P.C. Police Station-Jahangirpur, District-Bulandshahr.

3. By the impugned order, the trial court has convicted the appellants, Raj Kumar and Bhoora alias Omi u/s 324/34 and 323/34 I.P.C. with a fine of Rs. 2,000/- and Rs. 1,000/- each respectively with default clause. They are further sentenced to imprisonment till the rising of the court under the said count.

4. According to the prosecution case about 4-5 days prior to the occurrence in question i.e. 17.02.1983 at about 10 a.m. the accused-appellants, Raj Kumar and Bhoora were opening fire at their tubewell. Prasadi and his son, Mahavir, who were residents of village-Bhoot Garhi, P.S. Jahangirpur, District Bulandshahr, were going to their own tubewell. They objected to the accused whereupon the accused threatened them with dire consequences, if they disclosed the above incident of firing to anybody else. The informant and his son did not convey this information to any of the villagers but the accused suspected the informant and his son. On 17.02.1983 at about 10 a.m. the accused, Bhoora and Raj Kumar with one other person were running with lathis and gandasa. On the main front of the house of Om Prakash. All the three assailants attacked Mahavir with lathi and gandasa with the intention to kill him. Accused Bhoora attacked Mahavir on his head with the gandasa as a result of which Mahavir fell down. The witnesses Bhoja, PW-2 Vikram Singh and other villagers assembled on the spot to save Mahavir. The accused ran away towards village-Pahasu. The informant’s wife and other villagers took injured Mahavir to District Hospital, Khurja. Bhoja went to Jahangirpur and informed the informant, Pershadi about this incident. Pershadi then went to Khurja and saw his injured son who was admitted in the hospital. The injured went thereafter to P.S. Jahangirpur and lodged the written report (Ext.Ka.1).

5. On the basis of written report (Ext.Ka.1), a chik FIR (Ext.Ka.4) was prepared by PW-5 Constable Omprakash Tyagi. On the basis of chik report, he made the G.D. entry (Ext.Ka.5). The investigation of the case was taken by PW-6 Babu Ram Sharma. He recorded the statement of Pershadi, Mahavir and Vikram, made a local inspection at the spot and prepared the site plan (Ext.Ka.6). On 25.02.1983, he took in his possession the blood-stained clothes of injured Mahavir and prepared the recovery memo (Ext.Ka.7) to that effect. After completing the investigation, he submitted charge-sheet (Ext.Ka.8) against accused Bhoora on 19.03.1983 u/s 323, 307 I.P.C. On 21.07.1983, another S.I. Mojjam Singh submitted another charge-sheet (Ext.Ka.9) against accused Raj Kumar u/s 323, 307 I.P.C.

6. Both the accused were committed to the Court of Sessions by order dated 03.08.1986 passed by learned Chief Judicial Magistrate, Bulandshahr. On 18.01.1989, the court framed charge u/s 323/34 and 307/34 I.P.C. against accused-appellants, Raj Kumar and Bhoora @ Omi. The appellants pleaded not guilty and claimed to be tried for the charge.

7. To prove the charge, the court examined PW-1 Mahavir, PW-2 Vikram and PW-3 Pershadi as witnesses of fact whereas PW-4 Ravi Kumar Sharma, PW-5 H.C. Om Prakash Tyagi and PW-6 S.I. Babu Ram Sharma, were examined as formal witnesses.

8. PW-3 informant Pershadi proved the written report (Ext.Ka.1). He also proved the blood-stained clothes of injured Mahavir as material Exts.1, 2 and 3. He stated in his evidence that above material exhibits were packed and sealed before him by the Investigating Officer and the Investigating Officer prepared the memo regarding taking them in his possession.

9. P