M. C. Jain, J. - (1.) THESE are two connected appeals arising out of the judgment and order dated 23.9.1980 passed by Sri M. P. S. Tomar, the then IInd Additional Sessions Judge, Mathura in Sessions Trial No. 18 of 1980. They are being decided by this common judgment treating Criminal Appeal No. 2179 of 1980 as the leading appeal. Six persons were tried before the trial court, they were : (1) Deep Chand, (2) Kalua alias Kali Charan, (3) Raman, (4) Bihari, (5) Bishambhar and (6) Babu. Kalua alias Kali Charan, Raman, Bihari and Bishambhar are the sons of Deep Chand whereas Babu is the son of maternal uncle of Deep Chand. Out of them, Deep Chand was acquitted, having been afforded the benefit of doubt. All the rest were convicted under Sections 147 and 302, I.P.C. read with Section 149, I.P.C. Each of them was sentenced to nine months' rigorous imprisonment under Section 147, I.P.C. and life imprisonment under Section 302, I.P.C. read with Section 149, I.P.C. Criminal Appeal No. 2179 of 1980 has been preferred by Babu whereas the remaining convicted accused have preferred Criminal Appeal No. 2187 of 1980.
(2.) BROAD spectrum of the prosecution case as emerging from the first information report and the evidence adduced in the Court may be set forth. The incident took place on 28.11.1979 at about 6 p.m. in Mohalla Botigodam, Police Station Sadar Bazar, district Mathura. The victim and deceased of the incident was Charan Das. The first information report was lodged on 28.11.1979 at 6.45 p.m. at the concerned police station which was at a distance of 2.5 furlongs from the place of occurrence. The informant was Omwati P.W. 2, wife of the deceased. The victim was alive when the first information report was lodged and as such, the case was initially registered under Sections 147, 148, 307, 149, I.P.C. However, the victim died the same day at 9.15 p.m. in the hospital and the case was converted, inter alia, under Section 302, I.P.C. Charan Das deceased and accused Deep Chand were real brothers, latter being the elder. Deep Chand had five sons, namely, Kalua alias Kali Charan, Raman, Bihari, Bishambhar and Bhagwan Das. Out of them, Bhagwan Das was aged about 7 or 8 years only. The remaining four are the accused-appellants. Deep Chand and Charan Das were living in a house. Half eastern portion of the house was in occupation of Deep Chand whereas the other half of the western side was in occupation of Charan Das. The house originally belonged to Kundan father of Deep Chand and Charan Das. After the death of Kundan, a dispute started between the families of two brothers, Deep Chand and Charan Das over the said house. Kundan had allegedly executed a registered Will in respect of the house in favour of five sons of Deep Chand, not giving any share to Charan Das. As stated by Omwati P.W. 2, the said Will had been got executed from Kundan by Deep Chand in a dubious way. Sons of Deep Chand had filed a civil suit which was pending for the last about 2 or 2-1/2 years before the incident. A marpit had also taken place about 1-1/2 years before the present incident and on two other occasions. A case in that connection was pending before the trial court and another before this Court. The two families were at logger-heads and the relations were strained owing to the background narrated above. On 28.11.1979 at about 6 p.m. Omwati P.W. 2, her daughter Km. Radha P.W. 7 and two other younger children were at their houses. They heard hue and cry from the side of the shop of Ratan ; whereupon they rushed up towards that place and found that the accused persons were beating and hitting Charan Das. They dragged him to their chabutra below neem tree, downed him there and started assaulting him severely. Kalua alias Kali Charan had a pointed iron rod. Babu and Deep Chand had lathis while others had dandas. Charan Das's blood was oozing profusely from the injuries caused to him. Besides Omwati P.W. 2 and Km. Radha P.W. 7, the incident was witnessed by Roshan Lal P.W. 3, Beni Ram P.W. 5, Anant Sharma, Daya Nand, Chhotey Lal and others. When the persons collected around and accosted the accused, they ran away.
(3.) OMWATI P.W. 2 got a report written by Anant Sharma and sent the same to the police station through Bal Kishan where a case was registered at 6.45 p.m. as stated earlier. She herself arranged a rickshaw and carried Charan Das to the hospital. He was medically examined by Dr. Daulat Ram P.W. 4 on 28.11.79 at 7.15 p.m. The following injuries were found on his person as per injury report as Ext. Ka-4 : (1) Lacerated wound 5 cm. 1/2 cm. scalp deep (advised X-ray) on right side of head 10 cm. above right ear. (2) Abrasion 1/2 cm. 1/4 cm. on outer side of left upper eye lid. (3) Stab wound 1/2 cm. 1/2 cm. muscle deep on medial side of mid of right arm. (4) Traumatic swelling 7 cm. 4 cm. on the back of mid right forearm, advised for X-ray. (5) Abrasion 1/2 cm. 1/2 cm. behind right wrist. (6) Contusion 7 cm. 1/2 cm. on left (sic) muscle. (7) Lacerated wound 1/4 cm. 1/4 cm. bone deep on lateral side of lower and of left arm surrounded traumatic swelling 4 cm. 4 cm. (8) Contusion 2.5 cm. 1/2 cm. on lateral side of mid of left arm. (9) Lacerated wound 0.75 cm. 0.25 cm. bone deep on back of upper part of left forearm 3 cm. below from elbow joint, advised for X-ray. (10) Lacerated wound 1/2 cm. 0.25 cm. bone deep 7 cm. below injury No. 9 surrounded by traumatic swelling 7 cm. 4 cm. advised for X-ray. (11) Lacerated wound 0.5 cm. 0.25 cm. muscle deep on back of left wrist surrounded by traumatic swelling 8 cm. 5 cm. upto back of hand. (12) Contusion 8 cm. 3 cm. outer side of lower half of left forearm, advised for X-ray. (13) Lacerated wound 0.75 cm. 0.25 cm. muscle deep on front of mid of left leg. (14) Lacerated wound 1 cm. 0.25 cm. muscle deep on lateral side of lower end of left leg and above left ankle joint, surrounded by traumatic swelling, advised X-ray. (15) Lacerated wound 1 cm. 0.25 cm. muscle deep on front of right leg 5 cm. below knee joint. (16) Contusion 6 cm. 1-1/2 cm. medial side of right leg middle. (17) Abraded contusion 8 cm. 1 cm. on lateral side of lower end of right leg. The injured was semi-conscious. The injury Nos. 1, 4, 9, 10, 11, 12 and 14 were kept under observation and X-ray was advised. All of them had been caused by blunt object. Consequent upon the death of deceased, autopsy on the dead body of Charan Das was conducted on 29.11.79 at 3.30 p.m. by Dr. Shiv Shankar Saraswat P.W. 8. The outcome of the post-mortem may also be noted. The deceased was aged about 38 years and had died in District Hospital, Mathura on 28.11.79 at 9.15 p.m. The following ante-mortem injuries were found on his person : (1) Stitched lacerated wound 5 cm. 1/2 cm. scalp deep 10 cm. above the right ear on head. (2) Abrasion 1/2 cm. 1/4 cm. on the left upper eyelid. (3) Stitched wound 1/2 cm. 1/2 cm. muscle deep on the right arm at medial and middle part. Margins irregular. (4) Swelling with bruise 7 cm. 4 cm. on back of right forearm. (5) Abrasion 1/2 cm. 1/2 cm. on the back of right wrist. (6) Contusion 7 cm. 1-1/2 cm. on the left deltoid region of left arm. (7) Lacerated wound 1/4 cm. 1/4 cm. with surrounding traumatic swelling 4 cm. 4 cm. on the lower part of left arm on lateral side, bone deep. (8) Contusion 2-1/2 cm. 1/2 cm. on lateral side of left arm middle part. (9) Lacerated wound 3/4 cm. 1/4 cm. bone deep on the left forearm at back. (10) Lacerated wound 1/2 cm. 1/4 cm. bone deep with surrounding swelling with fracture of both bones of left forearm 7 cm. below inuury No. 9. (11) Lacerated wound 0.5 cm. 0.25 cm. muscle deep on the left wrist with swelling on wrist and left hand. (12) Contusion 8 cm. 2 cm. on the lateral side of lower half of left forearm. (13) Lacerated wound 0.7 cm. 0.25 cm. muscle deep on the middle front of left leg with fracture of left tibia underneath the injury. (14) Lacerated wound 1 cm. 0.2 cm. muscle deep on the left leg lower end lateral side with swelling of ankle joint. (15) Lacerated wound 1 cm. 1/4 cm. muscle deep on right leg from 5 cm. below knee joint. (16) Contusion 6 cm. 1 1/2 cm. on the medial side of right leg middle part. (17) Abraded contusion 8 cm. 1 cm. on the lateral side of right leg in lower part with fracture of both bones of right leg above ankle joint. The cause of death was shock and haemorrhage with coma due to ante-mortem injuries with head injury.;