KAMLESH SHARMA,J. -
(1.) The appellant -accused, Dhani Ram, alongwith his brother, Sohan Lal, and brother -in -law, Kashmiri Lai was tried for an offence punishable under section 323 read with section 34, I. P. C. He was, in addition, tried for offences punishable under section 302, I. P. C. and 27 of the Indian Arms Act. Sohan Lal and Kashmiri Lai were acquitted but Dhani Ram was convicted for an offence under section 323, I. P. C and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 100. He was also convicted under section 302, L P. C. and sentenced to undergo rigorous life imprisonment and to pay a fine of Rs. 2,000. In the event of his failure to pay the fine, he was ordered to undergo rigorous imprisonment for a period of one year. For the offence under section 27 of the Indian Arms Act, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs, 200. In default of payment of fine, he was ordered to undergo simple imprisonment for a further period of two months. Feeling aggrieved. Dhani Ram has filed the present appeal challenging the judgment dated 2nd January 1989 of Sessions Judge, Una.
(2.) On 28th June, 1987 at 12.45 a m., one Tilak Raj son of Dhani Ram resident of village Dulehar, Police Station Una, who later appeared as PW 6 came to Police Post Haroli, District Una, and reported that Mehar Singh son of Shiv Dutt, resident of village Dulebar was killed by gun shot fired bv Dhani Ram. The version given by him in the F. I. R , Ex. P -GG, was that on the night of 27 -6 -K87 at 10.15 p, m. he was in his house. On hearing a noise, he proceeded towards the shop of Parkash Chand. When he reached near the electric pole he heard the sound of a gun shot and saw Mehar Singh collapsing near the Channa of the shop of Dinesh. He ran towards the place and found Karam Singh (PW 5), Neelam Kumar and Salochna Devi (PW 4) already standing on the road in the light comine from the shop of Parkash Chand. He also saw Dhani Ram standing with a gun in his hand near the Cbanna of the shop of Dinesh in the street which leads to his house. On seeing Tilak Raj, Dhani Ram immediately ian towards his house. On enquiry from Karam Singh, Neelam Kumar and Salochna Devi, Tilak Raj was informed that Mehar Singh had been shot dead by Dhani Ram. He saw the dead -body of Mehar Singh which was having bullet injuries and blood was oozing out from his stomach Tilak Raj had gone to the Police Post for lodging a F. I. R. alongwith Surender Kumar, another resident of the village.
(3.) On investigation it was found that there were preceding and attendant circumstances which led to the fatal incident of gun shot One day earlier to the day of fatal incident, at 1.30 p m., Ashwini Kumar son of Mehar Singh was sitting under the shade of a Banyan tree in village Dulehar alongwith his friends, Jai Gopal and Shiv Kumar. Sohan Lal came on the spot and accused Ashwini Kumar that he was a vagabond Next day, at 9 00 a. m., when Ashwini Kumar again met Sohan Lal in a video shop, he enquired from him that why he had made false accusations against him the previous day Sohan Lal retorted that he would tell the reason in the presence of his friend Jai Gopal At this Ashwini Kumar sent his friend Jugal Kishore, who was with him at the relevant time, to fetch Jai Gopal. By the time Jai Gopal reached, Sohan Lal had entered the video hall. He was called out by Ashwini Kumar through Jai Gopal When Sohan Lal came out, one Sham Lal was also with him Thereafter Ashwini Kumar and Sohan Lal exchanged abuses and had a scuffle Durine the course of the scuffle Sohan Lal was pushed by Ashwini Kumar on a fence of thorny bushes. Ultimately, they were disentangled by the friends of Ashwini Kumar and, thereafter, Ashwini Kumar proceeded in the direction of his cattle shed which is at a distance of one kilometre from his house When he reached under the Banyan tree, Sohan Lal, Dhani Ram and Kashmiri Lai attacked him. At that time, Dhani Ram was armed with an axe. The other two persons were armed with Dandas Ashwini Kumar was hit by Dhani Ram with the axe and beaten by Sohan Lal aad Kashmiri Lai with Dandas. He was saved from their clutches by his friends Jai Gopal, Jugal Kishore and Shiv Kumar, who reached there on hearing his hue and cry. Thereafter the accused fled away. Due to head injury Ashwini Kumar had fallen unconscious and was brought to the house of Bhupender on a cot His mother and aunt, Salochna Devi heard the noise while standing at the roof top of their house and rushed to the house of Bhupender. On seeing her son lying unconscious, the mother of Ashwinl Kumar also lost her consciousness. Soon after this, Mehar Singh, father of Ashwini Kumar, reached the house of Bhupender from his cattle shed and was told about the merciless beating of his son by Dhani Ram, Sohan Lal and Kashmiri Lal. Hearing this, he proceeded towards the house of Dhani Ram. His sister -in -law, Salochna Devi, also followed him. They were further joined by Karara Singh and Neelam Kumar who met them on the way. When they reached at a point wherefrom a lane turns towards the house of Dhani Ram, they found him standing in the lane with a gun in his hand. Mehar Singh asked Dhani Ram the reason for giving merciless beating to his son At this, Dhani Ram pointed his gun towards him and said that he was ready with the reply Salochna Devi pleaded with Dhani Ram not to fire but Dhani Ram paid no heed to her entreaties and fired a shot which hit Mehar Singh on the lower part of his chest. On receiving the gun shot injury, Mehar Singh fell down on the spot and died instantaneously. Soon thereafter Tilak Raj reached at the spot and seeing Mehar Singh lying dead on the ground, went to the house of one Surender who owned a scooter, and went, alongwith him on bis scooter, to Police Post Haroli, for lodging the F. I R. On receiving the information, the Police immediately reached at the spot, prepared the inquest report, took photographs and possession of incriminating articles. The dead -body of Mehar Singh was sent to the hospital for post -mortem examination. Medical examination of Ashwini Kumar and the three accused persons was also got conducted. Thereafter, challan was put up and trial was held.;