- (1.) The two appellants Shangara and Piara figured as A-1 and A-3 before the trial Court. They along with two others were tried for offences punishable under Section 302 and Section 302 read with Section 34, IPC. It is alleged that they attacked the deceased, Bansa and caused his death. The trial Court convicted all the four accused. The A-1 was convicted under Section 302, IPC and the other three accused were convicted under Section 302 read with Section 34, IPC and sentenced to undergo imprisonment for life. All the four preferred an appeal before the High Court. The High Court acquitted A-2 and A-4 and confirmed the convictions of A-1 and A-3 who are appellants before us.
(2.) The prosecution case is as follows : Bhajan P.W.3 and Bansa deceased were real brothers and Babu Ram, another witness was their sister's husband. Babu Ram's sister was married to the brother of Ishar resident of village Hardo Chhani and the accused are his relations. On the date of occurrence 10-10-79 the accused came to the house of the deceased, at about 9-30 p.m. they and the other members of the house were taking their meals at the house of Ishar. Bhagat Ram accused asked Babu Ram to provide them with liquor and meat and on his refusal there was a quarrel and a fight. Babu Ram was rescued by P.W. 3 and the deceased. The accused left the house immediately. It is alleged that Bhajan and Bansa came to the house of Ishar for going to their Village and the accused attacked the deceased. Shangara (A-1) was armed with a Kulhari, Amrika (A-4) was armed with a bahi (arm of the cot), Piara (A-3) was armed with a gandhali but Bhagat Ram (A-2) was empty handed. On seeing Bhajan, Bansa and Bhagat Ram the accused raised a lalkara. Thereupon A-1 came forward and gave a kulhari blow on the head of the Bansa as a result of which he fell down. Then Amrika acquitted accused, gave a blow with bahi on his neck and Piara, A-3 who is the another appellant before us gave two gandhali blows on the back side of the right thigh. P-W. 3 went inside the house and brought a sua to save his brother and gave a blow on the chest of the Shangara. In the meantime Smt. Piaro, P.W. 4 and Babu Ram P.W. 5 also came in the street. When she tried to intervene A-4 gave a blow on her right arm with bahi. The villagers raised a hue and cry. The accused ran away. The deceased died on the spot. A report was given to the police on the same date. The case was registered and the investigation was taken up. The inquest was held on the dead body and it was sent for post-mortem. The doctor P.W. 1 conducted post-mortem on the body of the deceased and he opined that injury No. 3 on the head caused the death. A-1 was also examined for the injuries and the doctor found diffused swelling on the back of the right side and incised penetrating wound on the front side of the neck and two superficial abrasions. The prosecution examined P.Ws. 3, 4 and 5. The accused pleaded not guilty. A-1 in particular stated that he inflicted injuries on the deceased while exercising the right of self-defence in-as-much as he was attacked first. The trial Court rejected the plea of self-defence. The Appellate Court, however, held that the injuries on the accused have been explained. The High Court acquitted the other two accused on the ground that one of them Bhagat Ram was about 80 years old and another Amrika was aged about 16 years and that there were no corresponding injuries to the blows attributed them.
(3.) In this appeal the learned counsel submits that the High Court has erred in not giving the benefit of the right of self-defence particularly when the specific plea has been set up. It may be mentioned at this stage that the time and place of the occurrence are not in dispute. The presence of the two appellants is not in dispute. Eye-witnesses presence is not doubted. The only question is whether the plea of self-defence can be sustained. This is a case where eye-witnesses particularly P.W. 3 has clearly explained as to how A-1 received injuries. He has stated that when his brother was being attacked he went inside the house and brought a sua and inflicted the injury on A-1. This explanation given by the prosecution witnesses appears to be cogent, convincing and the same has been accepted by both the Courts below. We see no ground to disagree. Now the question is whether A-3 can be convicted under Section 302 read with Section 34, IPC. So far as A-1 is concerned the evidence is clear to the effect that he inflicted a fatal injury on the head of the deceased with a kulhari. The doctor P.W. 1 who examined the deceased found an incised wound on the back side of the right thigh. He did not even describe it to be dangerous. The other injuries inflicted are abrasions and simple contusions. The doctor admitted that they could be even caused by fall or brick bata. Therefore, the only overt act attributed to A-3 is that he inflicted an incised injury on the right thigh. No other overt act is attributed to him. Further it has to be borne in mind that this unfortunate incident took place because of a trivial quarrel among the relations with regard to supply of liquor and mutton during the dinner in which the accused as well as the deceased and other witnesses were participating. No doubt the eye-witnesses deposed that the accused left after half an hour when the deceased left to the village. From that alone it cannot be said that there was a common intention to cause the death of the deceased. This aspect has to be judged by the part played by them, nature of the injuries inflicted and the surrounding circumstances. Having given our anxious consideration to all the circumstances we find it difficult to convict A-3 also under Section 302 read with Section 34, IPC. Having regard to the nature of the occurrence, this is a case where the two appellants should be held responsible for their individual acts. In this view of the matter A-1 who caused the fatal injury on the head of deceased is liable for his conviction under Section 302, IPC. The sentence of imprisonment for life is confirmed. So far as A-3 is concerned his conviction and sentence under Section 302 read with Section 34, IPC are set aside. Instead we convict him under Section 326, IPC and sentence him to seven years' R.I. In the result the appeal is dismissed as against A-1 and is partly allowed as against A-3 to the extent indicated hereinabove.;