( 1 ) THIS is a criminal appeal against the judgment and order dated 30-6-1984 passed by Sri V. S. Bajpai, the then addl. Sessions Judge (Special Judge), nainital in S. T. No. 173/1983, State v. Nazir ahmad and Ishrat Ali, whereby the appellant no. 1-Nasir Ahmad and appellant No. 2-Ishrat ali were convicted and sentenced to undergo R. I. for a period of two years and to pay a fine of Rs. 500 under Section 324, ipc and 324/34, IPC respectively. In default of payment of fine, the appellants would further undergo R. I. for a period of six months.

( 2 ) THE prosecution case in a nutshell is that on 4-4-1982 at about 1 p. m. the injured-Om Prakash was going on a cycle from his shop to his house. When he reached near the Masjid in Mohalla Bansphoran, the front wheel of his cycle dashed the foot of the appellant-Nasir Ahmad. The appellant-Nasir Ahmad then pulled the complainant down from the cycle and started hurling abuses to him. The appellant-Ishrat Ali caught hold of the hands of the injured from back and the appellant-Nasir Ahmad gave him a knife blow near the chest, due to which the complainant fell down on the ground and became unconscious. Rajendra, Ramesh chandra and Babli had also reached there. Then, the injured -Om Prakash was taken to civil Hospital,kashipur by the brother of the injured i. e. Ramesh Chandra. Therefter, the complainant got written a report (Ex. Ka. 2 ). The FIR (Ex. Ka. 5) was lodged at the police station and entry to that effect was made in the G. D. (Ex, Ka. 6 ). The investigation was entrusted to R. P. Binjola S. I. (P. W. 5), who prepared the site plan (Ex. Ka. 3) and recorded the statements of the witnesses. The investigation was taken up as usual which culminated into the submission of the charge-sheet (Ex. Ka. 4)

( 3 ) CHARGES were framed under Section 307. IPC and 307/34,ipc against the Nasir ahmad and Ishrat Ali respectively. The appellants denied the charges and claimed the trial

( 4 ) THE prosecution in support of its case examined five witnesses. Out of these witnesses, dr. J. C. Arora (P. W. 1),the Medical officer, Civil Hospital,kashipur examined the injured on 4-4-1982 at 1 P. M. The doctor found the following injury on the person of injured:- (i) Incised wound 2. 5 cm x 1 cm x depth not probed over right side of chest 5 cm away from midline, 8. 5 cm below right nipple. Shape shown in figure. Transverse. Blood was oozing from the wound. The injury, was kept under observation and the duration of the injury was fresh. The doctor opined that the injury could have been caused by a sharp object.

( 5 ) OM Prakash [p. W. 2) was Ihe victim injured and he supported the prosecution story as stated above. Ramesh Chandra (P. W. 3) and babli (P. W. 4) were the eye-witnesses of the incident. R. P. Binjola. (P. W. 5), the Investigating officer proved the site plan (Ex. Ka. 3) and submitted the charge-sheet (Ex. Ka 4)

( 6 ) IN the statement recorded u/s. 313, cr. PC the appellants denied the prosecution cast and stated that they have been falsely implicated in this case.

( 7 ) THE learned trial Court after appraisal of the evidence on record found the appellants guilty u/s. 324 and 324/34, IPC and convicted and sentenced the appellants as mentioned above.

( 8 ) I have heard the learned counsel for the parties and perused the evidence on record.

( 9 ) THE prosecution in support of its case produced the injured-Om Prakash in the evidence who had supported the prosecution and deposed as indicated in para 2 of the judgment. P. W. 3 Ramesh Chandra and p. W. 4 Babli were the eye-witnesses of the incident. They had, corroborated the evidence of Om Prakash P. W. 2 injured.

( 10 ) IT is pertinent to mention here that the appellant No. 2-Ishrat Ali has died during the pendency of the appeal. As such the appeal stands abated against him.

( 11 ) THE learned counsel for the appellant contended that the appellant waa neither named in the FIR, nor named in the statements recorded under Section 161, Cr. P. C. and he was not

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