The court considered the reliability of evidence and the appellant's claim of being a juvenile, leading to the setting aside of the sentence.

Hon'ble Dharam Veer, J. : This criminal appeal, preferred by the• appellant U/S 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C) is directed against the judgment and order dated 20.11.1995 passed by Additional Sessions Judge, Roorkee in Sessions Trial No.74 of 1993, State Vs. Prakash & another, whereby the learned Addl. Sessions Judge has convicted the accused/appellant Deepak under Section 308 of The Indian Penal Code, 1860 (hereinafter to be referred as the IPC) and sentenced him to undergo rigorous imprisonment for a period of three years. Accused/appellant Prakash was convicted U/S 308/34 IPC and was also sentenced to three years R.I.

2. I have heard Sri S.C. Tyagi, learned counsel for the appellants as well as Sri M.A. Khan, Brief Holder for the State and perused the entire material available on record.

3. Chief Judicial Magistrate, Haridwar vide his report dated 19.08.2009 has reported that the appellant no. 1 has died. Hence, the appeal filed by appellant no. 1 stands abated.

4. In brief, the prosecution story is that PW1 Sudhir Kumar lodged the FIR at P.S. Gangnahar, Roorkee with the averments that on 2.10.1991 he alongwith his father Daulat Ram and younger brother Sunil was in his shop. Prakash, Raju and Khem Chand were fighting with each other in front of his shop. His father tried to intervene in between the fight. On this, Prakash caught hold his father and Deepak assaulted him with the wood which he was having in his hand. His father raised alarm. On hearing the noise, his brother Sunil, his uncle Babu Ram and he saved his father. The said incident took place at 02:30 PM. He then got admitted his father at Dr. Rajendra Pal's hospital. With the same averments,. Sudhir Kumar (PW1) lodged the FIR at P.S. Gangnahar, Roorkee on 2.10.1991 at 8:10•PM. That FIR is Ext.Ka-I. On the basis of this FIR, Chik FIR of the case was prepared by Constable Clerk Ram Pal Singh, Le. Ext.Ka-3 and the case was registered against the accused persons U/S 326 IPC. Necessar entries were also made in the G.D., ca1 bon Copy of which is' Ext.Ka-4. The in vestigation of this case was entrusted t Sup Inspector Rambir Singh (PW4). Injured Daulat Ram was medically examined by Dr. Rajendra Pal (PW3) 0 2.10.1991, who prepared his injury report i.e. Ext. Ka-2. On the basis of the medical report, the case which initiall was registered u/s 326 IPC against the accused persons was then converted intiall Section 308 IPC. Entry to this effect was also made in the G.D., carbon copy on which is Ext.Ka-6. During the course on investigation, the La. recorded the statements of the witnesses and took the bloodstained shirt and undershirt of the injured into possession and prepared the recovery memo Ext.Ka-7. The I.O. also inspected the place of occurrence an prepared the site-plan I.O. Ext.Ka-5. or completion of the investigation, the La filed the charge sheet against the accused appellants Prakash (now dead) and Deepak. That charge sheet is Ext.Ka-8.

5. After receiving the charge sheet learned 1st Addl. Munsif Magistrate Roorkee committed the case to the court of Sessions on 18.2.1993, after given necessary copies to the accused/appellants as provided u/s 207 Cr.P.C.

6. On 6.8.1993, 1st Assistant Sessions Judge, Roorkee framed the. charge against the accused/appellants Deepah and Prakash u/s 308 IPC and 308/34 IPC, respectively. The charge was read over and explained to tile accused persons, to which they pleaded not guilty and claimed to be tried.

7. To prove its case, the prosecution-examined PW1 Sudhir Kumar, complainant of the case; PW2 Babu Ram, eyewitness; PW3 Dr. Rajendra Pal, Medical Officer, who medically examined the injured Daulat Ram and prepared the injury repot Ext.Ka-2 and PW4 S.I. Rambir Singh, Investigating Officer of the case.

8. Thereafter the statement of the accused persons were recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to each of them in question form, who have denied the alle