1. This is a criminal appeal filled by the appellant against the judgment and the order dated 27.08.1987 passed by Sri Mohan Singh, the then Sessions Judge, Almora in S.T. No. 20 of 1987 where by the appellant has been convicted and sentenced U/s 459 I.P.C. to under go R.I for 10 years and 380 I.P.C. to under go R.I. for 3 years. Both the sentences were ordered to run concurrently.

2. The case of the prosecution, in brief, is that on 19.05.1986 at 3:30 a.m. Sunder Singh PW-1 was sleeping on the first floor of his house situated in village Syalidhar district Almora. The complainant woke-up after hearing some sound and found that the appellant entered into his house after breaking the window of the house. The complainant asked who was that person, where upon the appellant threatened him with dire consequences. Without caring for his life the complainant made an attempt to catch hold of the appellant. The complainant raised the alarm. The appellant made an attempt to run away after causing injuries with a scissors to the complainant. In the meantime Shankar Lal PW-2, Sher Ram, Shankar Lal s/o Uday Ram of the neighbourhood came on the spot and the appellant was apprehended after beating him. On inquiry he gave out his name as Hasmat Ullah Khan (appellant). The appellant told that he had taken away the boxes and kept them in the field at the distance. On search one H.M.T watch was recovered from the pocket of the appellant. The appellant along with the, torch, H.M.T watch and one Kudal was brought to the police station where written report (Ex.Ka-1) was submitted by the complainant PW-1 on the basis of which F.I.R. (Ex.Ka-5) was recorded by constable Amar Singh (PW-4) and an entry was made in G.D. at 10:40 a.m. vide Ex.Ka-6. the investigation was entrusted to S.I Omkar Sagar. The articles brought by the complainant were taken into custody by the police and recovery memos (Ex.Ka-2), Ex.Ka-3, Ex.Ka-4 were prepared.

3. The appellant was medically examined on 19.05.1986 at 11:30 P.M. by Dr. L.S. Kanyal (PW-5). The following ante-mortem injuries where found on the person of the appellant vide injury report Ex.Ka 8.

1. Contusion 3.5 cm x 3 cm around right eyeball reddish in colour.

2. Contusion 2 cm x 1 cm reddish in colour over right side of forehead, 2.5 cm above the right eyebrow.

3. Abraded contusion size 2.5 cm x 1 cm of upper lip.

4. Abraded contusion 2 cm x 1.5 cm of lower lip.

5. Blood crust seen all around the nostrils and over upper and lower lips.

6. Contusions three in number, sized 5 cm x 1.5 cm, 4 cm x 1.5 cm, 6 cm x 1.5 cm on right back of chest and shoulder, reddish in colour.

7. Traumatic swelling in an area of 15 cm x 8 cm over right fore arm and hand, tenderness present.

8. Multiple abrasions 1 cm x 0.5 cm, 1.5 cm x 1 cm, 0.5 cm x 0.5 cm over front of right leg.

9. Abrasion 4 cm x 0.5 cm over front upper part of left leg.

10. Traumatic swelling in an area of 10 cm x 8.5 cm over left fore arm,

4. The injuries of Sunder Singh PW-1 examined by Dr. L.S. Kanyal (Ex. Ka-5) 19.05.1986 at 12 noon and the following ante-mortem injuries were found on his person vide the injury report (Ex. Ka-7):

1. Incised wound at the base of the right little finger On dorsal aspect, size 2.8 cm x 1.2 cm x 0.5 Oozing of serum present. Tailing present on the proximal aspect of the wound.

2. Contusion 4.5 cm x 4.5 cm on the dorsal aspect of the right hand, 5 cm below the middle of the wrist joint. Reddish in colour.

The injuries were caused by sharp object and blunt object. The duration of the injuries was half day old.

The Investigating Officer visited the place of occurrence and prepared site plans (Ex. Ka-9), (Ex. Ka-10) and (Ex. Ka-11). After completing investigation charge-sheet (Ex. Ka-12) was submitted against the appellant.

5. The appellant was charged U/s 459, 380 and 411 I.P.C. The appellant pleaded not guilty and claimed trial.

6. The Prosecution in support of this case examined PW-1 Sunder Singh who proved written report (Ex. Ka-1),