Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court directing acquittal of respondents-Bakhshish Singh, Balraj Singh and Gurmeet Kaur while altering the conviction of respondent-Balbir Singh from one under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') to one under Section 304, Part I, IPC. Learned Additional Sessions Judge Gurdaspur, had convicted each of the respondents for offence punishable under Section 302 read with Section 34, IPC.
(2.) Prosecution version as unfolded during trial is as follows : Agricultural lands of Kabul Singh (PW4) and that of Mangal Singh (hereinafter referred to as the 'deceased'), his nephew, and that of respondent-Bakhshish Singh and others adjoin each other and are located in the same vicinity in village Bhoa and fall within the jurisdiction of Police Station Sadar, Pathankot, District Gurdaspur. The land of Darshan Singh is also located nearby. About one week before the occurrence Darshan Singh was irrigating his land with canal water. The canal water overflowed through the Khal including the fields of Kabul Singh PW4 and entered into the fields of accused Bakhshish Singh wherein wheat crops were sown. Though this canal water had come, perhaps, from the field of Darshan Singh to the fields of the appellants but the accused were feeling that the canal water had come through the fields of deceased Mangal Singh. So, it was in this wake that on 1-5-1994, around 9.00 a.m., while Kabul Singh PW4 and his nephew deceased-Mangal Singh were returning from the fields along with Swinder Kaur (PW5), mother of Mangal Singh, the accused persons, namely, Bakhshish Singh and Balbir Singh armed with a dang each, Balraj Singh armed with Chhavi were found standing on the pucca culvert on the metalled road near the house of accused-Bakhshish Singh. Gurmeet Kaur raised a lalkara saying that Kabul Singh and Mangal Singh should not be allowed to escape as they had damaged their crops. Bakhshish Singh and Balbir Singh took Mangal Singh in their grip and threw him on the ground while accused Balraj Singh at the instigation of his mother Gurmeet Kaur inflicted a Chhavi blow on the head of Mangal Singh and it is only when the close relations of the deceased prayed for sparing the life of Mangal Singh, the accused persons ran away from the scene of occurrence. Mangal Singh was removed to Civil Hospital, Pathankot from where he was referred to C.M.C. Ludhiana. The aforesaid Mangal Singh breathed his last due to injuries on the way of Ludhiana. The dead body was brought to Civil Hospital, Pathankot. The statement Ex. PJ of Kabul Singh was recorded by SI Jarnail Singh PW8 at 7.30 p. m. on 1-5-1994 and on its basis formal F. I. R. Ex. PJ/2 was recorded at 7.55/8.55 p. m. on 1-5-1994. The special report reached the learned Ilaqa Magistrate at 5.05 a. m. on 2-5-1994. Thereafter SI Jarnail Singh (PW8) went to Civil Hospital, Pathankot and prepared inquest report Ex. PL and sent the dead body for post-mortem. On 2-5-1994, the Investigating Officer went to the scene of occurrence and prepared rough site plan Ex. PO with marginal notes. He took into possession five copies of sale deeds produced by Kabul Singh vide memo Ex. PK. Accused Balbir Singh, Bakhshish Singh and Balraj Singh were arrested on 5-5-1994. In pursuance of his disclosure statement on Ex. PP, accused Balraj Singh got recovered Gandasi Ex. P1 which was taken into possession vide memo Ex. PR. Accused Gurmeet Kaur was also arrested. Dr. Sunil Ghai (PW2) conducted autopsy on the dead body of deceased-Mangal Singh on 2-5-1994 and found the following injury :- (1) Lacerated wound 2 cm x 0.5 cm stitched present on the middle of the head approximately 2 cm. left to the mid-line. On dissection, underlying parietal bone was fractured. S/C tissue was lacerated and there was extradural and subdural haematoma present. Brain tissue underlying was lacerated. In the opinion of the doctor, the cause of death was due to the injuries to the vital organ brain caused by injury No. 1. The injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. Ex. P. C. is the copy of the postmortem report. After completion of investigation, charge-sheet was filed and since the accused persons pleaded innocence, trial was held. The trial Court placed reliance on the evidence of PW 4, the complainant, PW5 who claimed to be an eye-witness to hold the accused persons guilty. In appeal the basic stand of the accused persons was that there was absolutely no evidence so far as accused Bakhshish, Balbir and Gurmeet are concerned. So far as Gurmeet is concerned it is stated that she is stated to have only raised a lalkara and that so far as accused Bakhshish and Balbir are concerned they are supposed to have held the accused in their grip while accused Balraj inflicted a single blow. The stand of the prosecution was that by application of Section 34 IPC each one of them had been rightly found guilty. The High Court found that the evidence did not establish the roles purportedly played by Gurmeet, Balbir and Bakhshish. It also noted that only a single blow was given by Balraj and that too in course of a sudden quarrel. Accordingly as noted above Gurmeet, Balbir and Bakhshish were acquitted while the conviction of Balraj was confirmed.
(3.) In support of the appeal learned counsel for the appellant submitted that the High Court ought to have held that Section 34 has full application to the facts of the case. It should not have altered conviction so far as accused Balbir is concerned.;