D. Raju, J. -
(1.)These two appeals are dealt with together, since they relate to the same occurrence and arise out of a common judgment of the Court below. The appellant in Criminal Appeal No. 634 of 2001 was accused No.1 and the third accused is appellant in Criminal Appeal No. 1191 of 2001. These two along with Harvinder Singh (A2), Tikka Singh (A4) and Jaswant Singh (A5) stood charged before the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri, under Ss. 302, 148 and 149 of the Indian Penal Code, for having caused the death of Naresh Kumar, brother of PWs-8 and 10, and son of PW-11, at about 8 or 8.30 P.M. on 9-11-1990. Accused Nos. 1 and 2 are own brothers and son of one Baldev Singh, accused No.3 is the brother's son of Baldev Singh and cousin of A1 and A2, and while A4 is the friend of Baldev Singh, A5 is the servant of Baldev Singh. After trial, the learned Trial Judge by his Judgment dated 7-10-1995 found A1 (Jagtar Singh) guilty under S. 302, IPC, and acquitted all others holding that the prosecution has not been able to prove the charges against them beyond all reasonable doubt. A1 was consequently sentenced to undergo rigorous imprisonment for life, in addition to payment of fine of Rs.5,000/- and two years R. I. in case of default in payment of the same. A1 filed Criminal Appeal No. 532 DB of 1995 and the State filed Criminal Appeal No. 193-DB of 1996 questioning the acquittal of the other accused. The learned Judges of the Division Bench in the High Court, by its judgment dated 8-1-2001, dismissed the appeal filed by A1 and partly allowed the State appeal so far as A3 is concerned and convicted him under S. 302, IPC, read with S. 34, IPC, and sentenced him to imprisonment for life, in addition to the levy of a fine of Rs.5,000/- with a default clause. Hence, these appeals.
(2.)The case as disclosed from the evidence of Prosecution Witnesses may have to be briefly stated to appreciate respective contention of the parties before us. The complainant party had a sugarcane crusher in the land adjoining the lands of Baldev Singh. On 8-11-1990, A3 and two others came to the cane crusher where besides PW-8, his father, two brothers (Ramesh and Naresh) were present and abused them. On 9-11-1990, a Panchayat was said to have been convened in the Village Chouwala, which was said to have included also Sumer Chand (PW-3) besides Avtar, Ram Saroup, and one another person. It was stated that since A3 and others admitted their misconduct and it was decided that in case of any misbehaviour at any time thereafter, A3 will pay Rs.10,000/- as fine and if the other party misbehaved, they will pay Rs. 3,000/- to the other party, respectively. The admitted case of the prosecution is that everything relating to the said panchayat and the decision therein was oral and there was nothing in writing. Later in the evening on that day at about 4.30/5.00 P.M., the deceased and PW-8 left for Bilaspur in a Tonga belonging to Sheo Ram, who also drove the Tonga for selling the Gur weighing about one quintal. The same was said to have been sold to PW-6, Ram Lal, for Rs.400/- by the deceased who handed over the same to PW-8 and both were returning by the same Tonga to their Village Chouwala, the deceased and Tongawala seated on the front seat and PW-8 seated on the back, by about 8.00/8.15 P.M. When they were near the lands of Baldev on the link road of Ram Khera to Chouwala, the five accused, armed with lathis, raised lalkara that PW-8 and the deceased should not be allowed to go. A1 was said to have given a lathi blow, which hit the Tonga and PW-8 jumped from the tonga. In the meantime, A3 was said to have given a lathi blow to the deceased on his head and the Tongawala also seems to have ran away. PW-8 was said to have been watching what has happened from a distance of 25 paces and all the accused gave lathi blows on the deceased and by the time PW-8, who was hiding behind a tree, raised an alarm, all ran away from the spot with their respective weapons. It was also claimed that since each were in the process of assault calling the other by names, he could identify them from their voices, being known persons. Thereafter, PW-8, driving the tonga brought the deceased, said to be conscious at that time to their house and both narrated the incident to their father as well as the other brother. Thereupon PW-8, PW-11 and PW-3 brought the deceased in the 'trolley of PW-3 to Civil Hospital, Jagadhri, and on the way the deceased was said to have become unconscious. Later, it appears that the victim died at the Hospital at about 4.00 A. M. on 10-11-1990. Earlier on the report sent by the Doctor (PW-9) at about 11.15 P.M. about the serious condition of the victim to the Police, the ASI came to the Hospital at about 1.45 A.M. and recorded the statement of PW-8 and caused the case to be registered. After receiving the report about the death of the victim, and holding the inquest as well as arranging for the conduct of post mortem and further investigation was set in motion and on completion of the investigation, the Police laid charge only against A3 to A5 for an offence under S. 302 read with S. 34, IPC. It is only after examination of witnesses during trial, an order came to be made under S. 319, Cr.P.C. A1 and A2 were also summoned to face trial and fresh trial was held against all the accused for offences under Ss. 302, 148 and 149, IPC, resulting in the convictions, as noticed supra.
(3.)Shri Sushil Kumar, learned Senior Advocate, and Shri K. B. Sinha, learned Senior Advocate, appeared for the appellants in Criminal Appeal No. 634 of 2001 and Criminal Appeal No. 1191 of 2001 respectively, whereas Shri J.P. Dhanda, learned counsel, was heard for the respondent-State.