- (1.) This appeal arises under the provisions of the Supreme Court Enlargement of Criminal Jurisdiction Act. There are three appellants. They were tried for offence punishable under Section 302 read with Section 34, IPC. The State preferred an appeal against the order of acquittal and the High Court interfered and convicted all the three under Section 302 read with Section 34, IPC and sentenced each of them to undergo imprisonment for life. The prosecution case is as follows : The deceased, Nathu Singh, the three accused, who are brothers, and the material witnesses P.Ws. 2, 3 and 5 belong to the Village Jambari, Indore District. P.W. 2 and P.W. 5 are the sons of Ganabai P.W. 3, who is the daughter-in-law of the deceased. The deceased gave a loan of Rs. 1,700/- to one Babu Brahmin who in turn had mortgaged the disputed land. Babu had agreed to sell his land but there was some dispute in respect of the land. On the date of occurrence, namely, 30th October, 1978 at about 12.00 noon, the accused Babu Lal had got the grass of the disputed land cut and was taking it in his bullock-cart. The deceased came and told him that unless some body arrives from the Police. Station, he cannot take away the grass. Accused Babu Lal thereafter left and in the meantime the deceased, Nathu Singh, sent his son Jagdish (P.W. 5) to the Police Station to call some Police Officers. In the meanwhile the accused Babu Lal came with other two accused. Babu Lal (A-1) was armed with an axe, Ganesh (A-3) was armed with a Dhariya and Behru (A-2) was armed with Ballam. These accused persons started abusing him and said that they will take away the grass and kill him. Thereupon, Babu Lal (A-1) delivered an axe blow on the left leg of the deceased, causing an injury which started bleeding. He gave another blow on his right leg and accused Behru gave a ballam blow on his left hand and accused Ganesh gave a Dhariya blow on his right hand. The accused Babu Lal gave a blow with blunt portion of the axe on the head. Thereafter the accused went away. P.Ws. 2 and 3, who witnessed the occurrence, took injured to the Police Station and the deceased himself lodged the report at 2.45 p.m. which is registered under Sections 324, 325, IPC, etc. P.W. 2 gave another separate statement that he was also beaten on the way. The injured, Nathu Singh, was examined by the Doctor. He found a contused lacerated wound on the left leg, another contused lacerated wound on the left palm and also on the right palm. There were some other injuries on the accused and they were also examined by the Doctor. The injured, Nathu Singh, was admitted in the Hospital and he died on 6th November, 1978. The Doctor, who conducted post-mortem, noticed the fracture of the right parietal region and on internal examination he found that there was a dark black haemotoma over right parietal region. He also found the linear fracture of the parietal bone. He noticed other injuries on the left leg, right thumb and another injury on the left leg. He also found a fracture of distil end of fifth metacarpal bone. He opined that the deceased died of coma due to the head injury, which resulted in the fracture of the skull bones. The accused were arrested and after completion of the investigation, the charge-sheet was laid The prosecution mainly relied on the evidence of P.Ws. 2 and 3, who figured as eyewitnesses. The trial Judge held that these eyewitnesses were present at the scene of occurrence, but rejected their evidence on the ground that their evidence is not corroborated by the medical evidence. The trial Judge examined their evidence in the light of the medical evidence and held that the injuries found are not in conformity with the overt acts attributed to the respective accused. In coming to this conclusion, the learned trial Judge examined the evidence of the two Doctors and since they did not notice incised wound and also the head injury the trial Judge acquitted two of the accused on that ground and acquitted Behru Singh (A-2) on the ground that he had a right of private defence of property.
(2.) In the appeal, the High Court also held that these eye-witnesses were present and to that extent confirmed the finding of the trial Court. The High Court, however, disagreed with the trial Judge that the medical evidence was in conflict with the direct testimony and also held that the right of private defence had been wrongly given to A-2.
(3.) XX XX XX;