This is a criminal appeal against the judgment and order dated 05.07.1990 passed by the then 4th Additional Sessions Judge, Nainital in ST. No.271 of 1989, whereby both the appellants were convicted and sentenced to undergo R.I for seven years under section 304 IPC read with 34 IPC.

2. The facts, in nutshell, are that on 21.08.1988 at about 2 p.m. Smt. Krishna Devi (deceased) was removing soil which had fallen down from a wall nearby her house situated in Mohalla Niwadmandi, P.S. Jaspur. Appellants Gopali Singh and Prem Singh objected her to remove the soil. On this, a scuffle took place between the parties. Accused Gopali Singh and Prem Singh beat her with a wooden stick (danda) due to which Krishna Devi had sustained injuries on her person. When her brother Pritam Singh tried to intervene in the melee he was also beaten by the accused persons. In the meantime, Banwari PW5, the father of the deceased and other witnesses reached at the spot at the time of incident and they saw the incident. The witnesses intervened in the melee and tried to save the injured persons from the assaults of accused persons. Thereafter, the report was lodged at the police station on the date of incident of a non-cognizable offence. Injured persons were taken to the hospital for medical treatment. The medical examination of Smt. Krishna Devi and Pritam Singh PW4 was conducted by Dr. G. S. Joshi at about 4:10 and 4:25 pm respectively on the date of incident. Smt. Krishna Devi was referred to for X-ray and after conducting X-ray a supplementary report was submitted in which one injury was found grievous in nature. On 23.08.1988 at about 11:50pm Smt. Krishna Devi succumbed to her injuries in the civil hospital, Jaspur. Thereafter, the police converted the case under section 304 IPC on 24.08.1988. The matter was investigated by the police and after completion of the investigation the charge-sheet was submitted before the court concerned.

3. After submission of charge-sheet the appellants-accused were committed to the court of Session for trial and the trial court framed charges against the accused persons. They denied the charges levelled against them and claimed their trial.

4. The prosecution in support of its case examined six witnesses. Dr. G. S. Joshi PW1 was the medical officer, who medically examined Smt. Krishna Devi and Pritam Singh. He proved the injury reports Ex.ka. 1 and 2. Jagdish Singh PW2 is a witness of inquest report. Constable Naubat Singh PW3 took the dead body of the deceased in a sealed bundle to the hospital for post-mortem. Pritam Singh PW4, brother of the deceased is the injured eye-witness of the incident. Banwari PW5, father of the deceased reached immediately at the spot at the time of incident. He is the eye-witness of the incident. R. M. Mishra PW6 is the investigating Officer of this case and he investigated the case and submitted the charge-sheet against the appellants.

5. The accused persons were examined u/S. 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case due to the enmity with the complainant. Appellant-Gopali Singh has further stated that the complainant party set fire his house and caused injuries on Maya Devi, Har Devi and Prem Singh.

6. The appellants have also produced the injury reports of Smt. Har Devi, Prem Singh and Km. Murti (Ex.kha. 1, 2 and 3 respectively) in support of their defence.

7. The accused-appellants in the trial eventually were convicted and sentenced by the trial court as mentioned above.

8. I have heard learned counsel for the parties and perused the record carefully.

9. At the outset, it needs to be mentioned here that it is not disputed that the deceased died on account of ante-mortem injuries sustained by her on the date and time of the occurrence. Dr. G. S. Joshi PW1, Medical Officer examined Krishna Devi at 4 : 10p.m. on the date of incident found the following injuries on her person :-

1. L.W. 9 cm. x 1 cm.