BALA KRISHNA NARAYANA,J. - (1.) HEARD Sri P. N. Misra, Senior Advocate, assisted by Sri Jitendra Pal Singh and Sri M. C. Singh, learned counsels for the appellants and learned A. G. A. appearing for the State and perused the record. The challenge in this appeal by the seven appellants namely, Jagvir, Chet Ram, Lakhpat, Har Vir, Udai Vir, Vir Singh and Chhattar is to the conviction of the accused-appellants, Jagvir, Lakhpat, Udai Vir and Chhattar Pal under Sections-148, 307 and 149 I. P. C. and Sections-302 and 149 I. P. C. and imposed sentence of two years' R. I. each on the first count, five years' R. I. each on the second count, and life imprisonment each on the third count, conviction of accused-appellant Chet Ram, Har Vir and Vir Singh under Sections-147, 307, 149 and Sections-302 and 149 I. P. C. and imposed sentence of one year R. I. each on the first count, five years' R. I. each on the second count and imprisonment for life each on the third count vide judgement and order dated 27th February, 1982 passed by the IV Additional Sessions Judge, Bulandshahar in S. T. No. 28 of 1981; State Versus Jagvir and others.
(2.) THE appellant no. 1, Jagvir, appellant no. 2, Chet Ram, appellant no. 4, Har Vir, and appellant no. 5, Udai Vir died during the pendency of this appeal and this Court vide order dated 7.12.2009 abated the present appeal against the deceased appellants Nos. 1, 2, 4 and 5. The appeal thus survives only on behalf of appellant No. 3, Chet Ram, appellant no. 6, Vir Singh and appellant no. 7, Chhattar. As a result, the appeal is now being heard only on their behalf. The prosecution version as unfolded in the first information report (Ext.-Ka-1) lodged by Naresh, son of the deceased-Sohan on 2.8.1980 at about 4.00 P. M. with police station-Jahangeerabad, district-Bulandshahar, is that his father, Sohan (deceased), his maternal uncle Rajinder and cousin sister, Chhammo had gone to the field of Sohan to collect fodder on the day of the incident. They noticed the accused persons diverting rain water into their maize crop field by demolishing the barrage raised by the deceased Sohan to prevent rain water from entering the field and when Sohan and Rajinder objected to the diverting of rain water into the field of the deceased by the accused, they were attacked by the accused with spears and Lathis. Spears were assigned to accused Jagvir, Lakhpat and Chhattar Pal and Lathi was assigned to Vir Singh. While the assault was in progress, Bani Singh, Subedar Singh besides other villagers reached the place of incident. On the alarm raised by the victims, Ranjit and the informant Naresh also reached the spot and saw the accused effecting their retreat. Sohan succumbed to his injuries on the spot and the other victim Rajinder followed the informant Naresh to the police station in a separate buffalo-cart. It was also mentioned in the first information report that Jagvir opened fire. Head Moharrir, Om Prakash Tyagi prepared Chik F. I. R. (Ext.-Ka) and relevant G. D. Entry. The case was investigated by S. I., Gopi Chand Verma. The inquest report was prepared by S. I., Sangram Singh. The site plan was drawn by the Investigating Officer. He interrogated Km. Chhammo and Bani Singh. Udai Vir and Vir Singh were admitted in district hospital at district-Bulandshahar on 15.8.1980. The remaining accused persons surrendered before the Court. The post-mortem of deceased, Sohan was conducted by Dr. G. N. Srivastava (P. W. 7) who noted incised wounds on the left side of the chest of deceased and an abrasion in the middle abdomen. The death of Sohan was opined to have resulted due to shock and haemorrhage as the pericardium as well as the right ventricle of heart had been cut. Accused Chet Ram, Har Vir, Udai Vir and Vir Singh were charged for the offences punishable under Section 147 I. P. C. and Jagvir, Lakhpat and Chhattarpal were charged for offence punishable under Section 148 I. P. C. All the accused were further charged for the offences punishable under Sections-302 and 307 I. P. C. read with Section 149 I. P. C. to which they all pleaded not guilty, claimed trial and were consequently tried. In its endeavour to establish the guilt of the accused prosecution examined P. W. 1 Naresh the informant, P. W. 2 Rajinder, the injured and P. W. 3 Subedar Singh as witnesses to the actual commission of the crime, P. W. 4 Dr. A. C. Manchanda who had medically examined victim Rajinder and Udai Veer, Vier Singh and Teja P. W. 5 H. C. Om Prakash Tyagi, the scribe of the Chick report and the G. D. entry regarding the registration of the crime, P. W. 6 Constable Jagdish Prasad, who had brought the corpse of the deceased to the mortuary for post-mortem P. W. 7 Dr. G. N. Srivastava, who had performed the autopsy on the corpse of the deceased. P. W. 8, S. I. Gpi chand Verma, the Investigating Officer and P. W. 9 S. I. Sangram Singh, who held the inquest on the body of the deceased.
(3.) ACCUSED Chet Ram, Lakhpat and Har Vir Singh denied their presence on the spot accused Jag Vir, Udai Vir, Vir Singh and Chhattar Pal in their examination under Section 313 Cr. P. C. refuted the prosecution version. The accused Udai Vir filed a detailed written statement setting out that on the day of the incident it had rained heavily and when it stopped raining at about 2.00 P. M., he went to see his cow-dung cakes which he had heaped on the land of Gram Sabha near the field of Sohan and found that Sohan had raised a barrage to save his maize crop of his field from being washed away by rain water. He demolished the barrage on which Sohan (deceased) along with his sons Naresh and Sukhi, brother, Ranjit and brother-in-law Rajendra quarrelled with him and when his brother Vir Singh and Tej singh arrived on hearing their altercation, Sohan and his sons, his brother and brother-in-law started re-erecting the barrage which had been demolished and when the same was resisted, Sohan and others attacked him and his brothers, Vir Singh and Teja with Lathis and spears. In the scuffle, that followed his brother Mahavir who had also arrived at the place of incident too received injuries and who in his self defence wielded a spear hitting Sohan in his chest and Teja wielded his Lathi hitting Rajender. He further stated that Mahaveer lodged a written report of the incident at police station-Jahangeerabad, copy of which was on record as Ext. Kha-4 on the basis of which Case Crime No. 216-A was registered against Naresh and Ranjit and other accused persons. The accused Udai Vir and Vir Singh were sent in police Jeep to the district hospital after their medical examination at Primary Health Centre, Jahangeerabad. D. W. 1 Dr. H. U. K. Zubari, Radiologist who had taken X-Ray of accused Udai Vir detected emphysema in his left lung. D. W. 2 Dr. M. K. Goyal who had attended both Udai Vir and Vir Singh had noticed surgical emphysema in their lungs and had advised X-Ray for confirmation of the same and D. W. 3 Dr. D. B. Singh who had medically examined Mahavir Singh on 3.8.1980 at 11.00 A. M. were examined in defence. The Sessions Judge after taking into consideration the entire evidence on record as well as the cross version of the incident set-up by the accused persons in their statements recorded under Section 313 Cr. P. C. as well as the detailed written statement filed by the accused Udai Vir and the plea of exercise of right of private defence raised on behalf of the accused persons held that the accused and not Sohan (deceased) and his sons were the aggressors. While coming to the aforesaid conclusion he noticed that the cow-dung cakes were heaped by the accused Udai Vir on Gram Sabha land and not on his land and thus, accused had no legal justification for demolishing the barrage which had been erected by the deceased, Sohan with a view to prevent his field from getting inundated by rain water and save his maize crops and if on account of erection of the barrage the cow-dung cakes and straw kept by the accused on the Gram Sabha land were likely to be washed away by rain water, the accused persons were to thank themselves.;