The central legal point established in the judgment is the application of Exception 4 to Section 300 IPC in determining the appropriate conviction under the IPC.

JUDGMENT :

Alok Kumar Verma, J.

These two appeals have arisen from a common judgment dated 08.10.2013/15.10.2013, passed by the learned District and Sessions Judge, Nainital, in Sessions Trial No. 173 of 2010, “State vs. Zahid alias Cheeta and two others”, by which, the appellants have been convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code (in short “IPC”), and, sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 10,000/- each, and, in default of payment of fine, they have been further directed to undergo imprisonment for a period of six months; and, they have been convicted and sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 5,000/- each for the offence punishable under Section 120B IPC, and, in default of payment of fine, they have been directed to undergo further imprisonment for a period of six months. Both the sentences are directed to run concurrently.

2. These two Appeals are connected appeals, therefore, these two appeals are being decided by this common judgment. File of Criminal Appeal No.486 of 2013 will be leading file.

3. The prosecution case, in brief, is that on 11.07.2010, a party was being celebrated in the house of Rizwan (PW1), informant. The deceased Faiyaz Khan alias Chaina was his friend. The deceased and the prosecution witness Mohd. Imroz (PW2) along with other persons were present in the said party. At about 10.00 p.m., the deceased Faiyaz Khan alias Chaina had gone back to his house. At around 10.30 p.m., the informant received a phone call from the appellant-accused Zahid alias Cheeta that the appellant-co-accused Abrar alias Kalwa had got money from gambling and asked him (Rizwan) to collect money. As the party was being celebrated in his house, he sent Mohd. Imroz (PW2). At about 10.45 p.m., Mohd. Imroz (PW2) came back and told that the appellants-accused persons had assaulted Faiyaz Khan alias Chaina with a Chapar. On the said information, the informant along with his associates reached the spot. They took him to Krishna Hospital, Haldwani. On the advice of doctor, they took him Sushila Tiwari Hospital, Haldwani.

4. On 12.07.2010 at 00.50, Rizwan (PW1), the informant, lodged the First Information Report (Ex. Ka14) through his written information (Ex. Ka1). Initially, the FIR was registered under Section 307 IPC. After the death of the injured during his treatment, the case was converted under Section 302 IPC. On 12.07.2010, inquest proceedings and post-mortem examination of the dead body of the deceased were conducted. The said Chaper and the clothes of the deceased were sent to the Forensic Science Laboratory. After completion of investigation, the Investigating Officer had submitted charge sheet (Ex. Ka28) against the appellants along with one Imran Khan.

5. The case was committed to the Court of Session.

6. Charges under Section 302 read with Section 34 and 120B IPC were framed against the accused persons. They denied the charges and claimed to be tried.

7. The prosecution examined as many as ten witnesses.

8. PW1 Rizwan is an informant and PW2 Mohd. Imroz is an eye witness. They have supported the case of the prosecution.

9. PW3 Shahnwaj Khan is a younger brother of the deceased. He was in the house when Mohd. Imroz (PW2) came back and informed that the appellants-accused persons had assaulted the deceased.

10. PW4 Dr. Vipin Pant has conducted the post-mortem of the dead body of the deceased at 09.30 a.m. on 12.07.2010. During the post-mortem, he found the following ante-mortem injuries on the dead body of the deceased :-

(i) Stitched wound seen over right forehead size 3 cm. X 0.5 cm.

(ii) Large stitched wound seen over right side by face size 8 cm. X 0.5 cm.

(iii) Stitched wound of size 15 cm. seen over left side of face, which extent up to back of neck. On further exploration wound was bony deep.

(iv) Multiple abrasion seen over right shoulder size 6 X 6 cm. dermis deep.

(v) Multiple abrasion seen over left side o