Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court holding the appellant guilty of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC) and Section 323 read with Section 34, IPC.
(2.) The appellant and his father Baldu had filed-the appeal before the High Court questioning the correctness of the conviction and imposition of sentence as done by the learned Sessions Judge, Hamirpur in Sessions Trial No. 287 of 1980. The appellants father Baldu died during the pendency of the appeal before the High Court and, therefore, the appeal stood abated so far as he is concerned.
(3.) The prosecution version as unfolded during trial is essentially as follows: Kali Charan, first informant (PW-1, his father Lachhi Ram (hereinafter referred to as the deceased) and his mother Smt. Ram Kunwar were returning after ploughing the land of Chandra Bhan with their bullocks on 28.7.1980 through the village pathway which was running from western to eastern side as shown in the site plan. The land of Pandit Laxman Prasad resident of village Mas Gaon is towards the northern side of the village pathway. This land was with the accused persons on share crop basis. On account of existence of mud on the village pathway, the bullocks of Kali Charan, first informant strayed into the field of accused Kashi Prasad. The accused persons became agitated on account of damage caused by the bullocks in their field and consequently they abused Kali Charan and his father Lachhi Ram. Latter took exception to it and asked the accused to refrain from abusing. Accused Kashi Prasad dealt the deceased-Lachhi Ram with a blow by a spear. Lachhi Ram fell on the ground. Baldu mounted an assault on the deceased with his lathi. Kali Charan also received lathi injuries. Kali Charan who was carrying a Khaulia used the same in defence of his father, as a result of which accused Kashi Prasad and Baldu received injuries. After making necessary arrangement, Lachhi Ram was put in a bullock cart but he took his last breath on way to police station Kharela. The dead body was taken to police station where a written first information report, Exh.Ka-2 was lodged by Kali Charan. The investigation was undertaken. The Autopsy Surgeon Dr. G.S. Pandey (PW-5) found the following ante mortem injuries on the body of the deceased-Lachhi Ram: 1. Stab wound 1 cm x 1cm in front of abdomen 4 cm from umbilicus at its level and right side. Skin, muscles, peritoneum, loops of large intestine pierces and finally entering the right side of kidney, which is done in pieces. There is plenty of blood and blood clots seen in peritoneal cavity. Contents of large intestines are mixed in pool of blood in cavity. 2. Contusion 7 cm x 2 cm in right side forearm in postero-lateral aspect the underlying radio ulna fractured at lower 1/3rd. 3. Lacerated wound 5 cm x 1 cm x bone deep in right parietal prominence direction front to back. 4. Contusion 5 cm x 11/2 cm in right side of forehead at upper border front to back direction. 5. Abraded contusion 61/2 cm x 4 cm on right side of chest in thoracic region in anterior auxiliary line in 7th to 10th I.C.S. 6. Contusion 41/2 cm x 2 cm in left shoulder joint at acromion process in lateral aspect. On the person of Kali Charan who was medically examined on 29.7.1980 by Dr. M.Y. Qureshi (PW-2) following nine injuries were found: 1. Contused wound 2 cm x 1/2 cm on the left side of head 7 cm above ear. 2. Abrasion 6 cm x 2 cm on the right arm upper half outside. 3. Swelling 7 cm x 3 cm over the right thigh. 4. Abrasion 5.5 cm x 2 cm on the right arm upper half front. 5. Abraded contusion 5 cm x 3 cm just above the shoulder blade. 6. Swelling 7 cm x 2 cm on the left index finger dorsal surface. 7. Swelling 2 cm x 1 cm over the left thumb distal phalangal joint dorsum. 8. Abraded contusion 5 cm x 2 cm, 2 cm outer to left right nipple. 9. Abraded contusion 5 cm x 2 cm on the left forearm half. The accused Kashi Prasad and Baldu who were taken in custody were medically examined by Dr. S. N. Dixit, (D.W.1) Assistant Medical Officer, District Jail, Hamirpur, Kashi Prasad received the following two injuries: 1. Contusion 3 cm x 1 cm on left wrist joint radial aspect. 2. Contusion 2 cm x 1 cm on left arm middle part. Baldu had received following three injuries: 1. Dressed wound 1/2 cm x 1/2 cm x bone deep on the left forearm 3 cm above left wrist joint. 2. Dressed wound 1 2/2 cm x 1/2 cm x muscle deep on the left hand dorsum 2 cm medical to web to left thumb. 3. Lacerated dressed wound 2 cm x 1 cm x muscle deep on left hand just on base on index finger. The injuries received by Kashi Prasad and Baldu were termed to be simple having been caused by some blunt object. At the trial, Kali Charan (PW-1, Jhalli (PW-3) and Sukh Lal (PW-4) were examined as eye-witnesses besides other formal witnesses. The accused persons took the plea of self-defence. According to Kali Prasad, Kali Charan and deceased-Lachhi Ram had deliberately driven their bullocks into field of the accused and on his intervention Lachhi Ram and Kali Charan began to abuse him and threatened him. He further stated that Kali Charan caught hold of him and when he managed to release himself from the clutches of Kali Charan, the deceased began to assault him with lathi and Kali Charan armed with a Khaulia rushed at him and thereupon his father Baldu rushed to save him and thereafter Kali Charan began to mount assault upon Baldu with Khaulia. Kashi Prasad further stated that he used spear to defend himself and his father Baldu and that he and Baldu both received injuries and they were medically examined in the District Jail, Hamirpur. The accused-Baldu took similar plea. The accused-Maha Prasad pleaded alibi. The trial Court on consideration of the evidence on record came to hold that the plea of self-defence raised by the accused was not made out and it was a case of murder of deceased. The accused also caused injuries on the informant. The High Court found no substance in the plea of accused-appellants and dismissed the appeal.;