U.C. Dhyani, J.

In the instance case criminal law was set into motion by filing a complaint (Ext.Ka-5) by Govind Singh s/o Kharak Singh of village Dhimmer Khera of P.S. Gadarpur, District Nainital on 12.07.1995. On the basis of complaint (Ext.Ka-5) chik FIR (Ext.Ka-12) was lodged by P.S. Gadarpur on 12.07.1995 at 2:15 a.m. Occurrence took place on 12.07.1995 at 1:00 a.m. Distance between place of occurrence and P.S. Gadarpur was 5 k.m. Hence there was no delay in lodging FIR.

2. Prosecution story was that informant along with members of his joint family were sleeping in night at their home. A lantern and dibia (small lamp) was providing light. Around 1:00 a.m. (in the night) he woke up on barking of dogs. He saw that Appellant Swaroop Singh s/o Doori Singh and Hemraj s/o Meenaram who were co-villagers of informant, entered into his house along with two companions. They started searching for informant’s brother Hoshiyar Singh with the help of torch. Informant’s mother Laxmi Devi, father Kharak Singh, brothers Kishan Singh and Gopal Singh all woke up. Informant asked, ‘what was the matter?’ Assailants surrounded the cot of Hoshiyar Singh and no sooner Hoshiyar Singh e