Shivaraj V. Patil, J. - (1.)These two appellants along with three other accused were tried for the offences under Sections 147, 148, 302 read with 149 and 323 read with 149, IPC. The learned Sessions Judge, after trial and on the basis of the material placed before him, acquitted all the accused. On appeal filed by the State, the High Court by the impugned judgment and order affirmed the order of acquittal as regards the three other co-accused and reversed the order of acquittal relating to these appellants and convicted and sentenced them to imprisonment for life for offence under Section 302 read with Section 149, IPC and sentenced them for shorter period for the offences under other sections. The appellants have assailed the said judgment and order of the High Court in this appeal.
(2.)In short, the prosecution case was that the deceased Om Pal had purchased some land from one Smt. Mukandi, widow of Chhota of village Krishni. The appellant No. 1 Dila disputed the possession of Om Pal over the land. On 27-9-1979, there was an altercation between Om Pal and Dila over harvesting of crop standing on the said land. At that time, Dila had threatened Om Pal. On the night of 28/29-9-1979, at about 12.30 a.m., the appellants and the other acquitted three co-accused accompanied by four others went to the house of Kishan Singh. Dila enquired about the whereabouts of Om Pal and when Kishan Singh kept mum, he was hit with lathi by Dila. On the shouting of Kishan Singh, Om Pal, Randhir Singh, Geeta Ram, Hari Singh, Balbir and Ved Prakash reached the place. Dila exhorted his son Telu Ram to kill Om Pal on which Telu Ram shot at Om Pal with a country-made pistol as a result of which Om Pal was injured, fell down and became unconscious. It was alleged that Dila was armed with lathi, Sitam Singh with knife, Gaje Singh and Ram Pal were armed with guns and four unknown persons were armed with lathis and kulhari. The accused assaulted Kishan Singh, Hari Singh and Randhir Singh. After the accused left the place, Om Pal and injured persons were taken to hospital at Saharanpur. Om Pal died near the hospital. The injured persons were examined at hospital. As already noticed above, the trial Court acquitted all the accused and the High Court, on appeal, reversed the order of acquittal as regards these two appellants.
(3.)The learned counsel for the appellants strongly contended that the High Court committed an error in reversing the order of acquittal on mere possibility of taking a contrary view. According to him, the conclusions drawn by the Sessions Judge based on proper appreciation of evidence and supported by reasons could not be disturbed by the High Court; the appellants could not be convicted on the basis of the same prosecution story which could not be proved against the three other co-accused particularly so when four unknown persons were also involved in the incident. The learned counsel also submitted that the appellant No. 1, Dila, is more than 80 years old and at this length of time his case needs to be considered sympathetically having regard to his age, health and other circumstances. In opposition, the learned counsel for the State argued in supporting the impugned judgment and order.