H.C.MITAL, J. - (1.) The above two appeals have been preferred against the judgment and order dated 3-3-1978 passed by Sri Sushil Kumar, the then Ist Addl. District and Sessions Judge, Bijnor, convicting the appellants Ram Nath, Raghunath Singh and Buddhu Singh u/Ss. 304 and 323 both read with S.34, IPC and sentencing them to five years and six months rigorous imprisonment respectively. Sri Sushil Kumar acquitted Dharampal Singh of the charge u/Ss.302, 323 and 325 read with S.34, IPC. On being aggrieved the State has preferred appeal No. 1634 of 1978 against all the accused as in its view all of them should have been found guilty and convicted u/Ss.302 and 325 both read with S.34, IPC, while the convict appellants Buddhu Singh, Ram Nath and Raghunath Singh have preferred their appeal against their conviction u/ Ss.304 and 323 both read with S.34, IPC.
(2.) The facts of the case in brief are that the parties are residents of village Jamalpur Pathani, P. S. Kotwali, Bijnor. Chaman Singh (deceased) and Buddhu Singh were real brothers. Accused Raghunath Singh and Ram Nath are sons of Buddhu Singh, while accused Dharampal Singh is nephew of Buddhu Singh. Chaman Singh had sold one and a half Bigha of land of joint Khata to Ram Singh and Karera a few months before the occurrence. Buddhu Singh accused wanted that the land should not be sold to an outsider as he wanted to purchase it himself. Hence the relation in between them became strained. It is said that on 7-7-1974 exchange of abuses had taken place in between them. Thereupon Buddhu Singh had threatened that he would settle the matter with Chaman Singh. On 8-7-1974 at about 8 a.m. when Chaman Singh was scraping gross in his field. while Jasram was ploughing it, the accused Buddhu, Ram Nath, Raghunath and Dharampal Singh all armed with lathis attacked Chaman Singh and when Jasram intervened to save his father he also received Lathi injuries. On the alarm raised by Jasram witnesses including Ram Singh, Karera, Dal Singh and Om arrived there and thereafter the accused left. Chaman Singh was taken to the police station in a bullock cart, but he succumbed to his injuries on the way. Oral report of the occurrence was lodged at P. S. Kotwali, Bijnor at a distance of three and a half miles at 10-45 a.m. on the basis of which case u/S. 302/323, IPC was registered against the accused and investigation started. Injuries of Jasram were examined on the same day at 1-50 p.m. at District Hospital, Bijnor by Dr. H.U.K. Zuberi and he found the following Injuries on his person, vide injury report (Ex.Ka-l l). 1.Double line contusion 3" x 1" on outer side of right arm middle part. 2.Contusion 3" x 1/2" on right arm outer side 1/2" below injury No. 1. 3.Contusion 3" x 1/2" on front of right shoulder joint, red. 4.Contusion 2" x 1" on outer side of right arm upper part, red. 5.Contusion 5" x 11/2" on back of right shoulder joint, red. 6. Contusion 2" x 1" on back of right shoulder joint, red. 7. Contusion 5" x 1" on back of right side upper part, red. 8. Abraded contusion 1/2" x 1/4" with swelling 3" x 3" on outer side of left fore-arm middle part. 9. Abrasion 1/4" x 1/4" on back of left hip middle part. 10. Contusion 2" x 1" on outer side of left leg upper part. 11. Abrasion 1" x 1" on front of left leg middle part. 12. Abrasion 1/2" x 1/4" on front of right leg lower part. 13. Abrasion 1/4" X 1/8" on right side of right toe lower part.
(3.) Postmortem examination on the deadbody of Chaman Singh was conducted by Dr. P. D. Gupta, Medical Officer, Civil Hospital, Bijnor on 9-7-1974 at 9 a.m. in the District Mortuary and he found the following antemortem injuries on his body. 1. Lacerated wound l" x 1/4" bone deep on the top of the head. 2. Swelling 3" x 21/2" on the left parietal area 4" above the left ear. 3. Swelling on whole of the occipital area of skull. 4. Abrasion 3" x 21/2" on the posterior aspect of the left forearm in its middle third. 5. Contusion 2" x 1" on the back of the left hand. 6. Abrasion 1/2" x 1/4" on the back of the right elbow joint. 7. Contusion 3" x 1 " on the posterior aspect of the right fore-arm. 8. Swelling of whole of the right hand. 9. Contusion on whole of the lower half of the back of the right side. 10. Contusion of whole of the right buttock. 11. Abrasion 3" x 21/2" on the inner aspect of the right leg just below the right knee joint. 12. Abrasion 6" x 4" on the front of the right leg extending up to its inner side, in its lower half. 13. Contusion 6" x 2" on the inner aspect of the left knee joint and lower one fourth of the left thigh. 14. Abrasion l " x 1/4" on the inner aspect of the right knee joint at its lower border. 15. Abrasion 1/2" x 1/4" on the middle of the left leg on its inner aspect. 3A. After completion of the investigation charge-sheet was submitted and at the trial the accused pleaded not guilty. To prove its case the prosecution examined in all four witnesses, of whom P.W. 1 Jasram is the son of the deceased, he had also received injuries and has lodged the FIR. P.W. 3 Ram Singh is the other eye witness of the occurrence and both of them fully corroborated the prosecution case, stated above. P.W. 2 Head Constable Hem Singh proved the FIR (Ex. Ka-1) prepared by him at the dictation of Jasram and registration of the case and other documents. P.W. 4 S. I. D. P. Saxena, the Investigating Officer proved the other necessary papers. Genuineness of the injury report of Jasram as well as postmortem report was admitted by the accused, hence those Doctors were not examined. On the other hand, the version of the defence as contained in the telegram (Ex. Kha-7) sent on the same day at 9-40 p.m. to the Superintendent of Police, Bijnor, has been that Churdi s/o S. Chaman Singh was plucking mango from his grove whereupon Buddhu Singh had reprimanded and slapped him in the morning. Immediately thereafter at about 8-30 a.m. when Buddhu Singh along with other accused ploughing the field, Jasram and Hoshram along with their father Chaman Singh and Chander s/o Natthu of whom Chander and Hoshram armed with Tabals, Jasram and Chaman Singh armed with Lathis arrived there and accosting 'Kaise Sale Ne Hamare Ladke Ko Mara Hai, Inhen Jaan Se Maar Do" attacked them with their weapons and at that time Ram Nath who had come with food also tried to intervene. He was also attacked with Tabal and Lathi and on hearing their alarm Kripal Singh, Ase and Lambe also arrived; that Budhu and his sons also wielded Lathi in self-defence; that they had also received injuries. According to Charam Pal he has been falsely implicated because of an earlier dispute with Chaman Singh regarding a passage and on that account a Mar Peet had taken place and Panchayat had decided it and since then the complainant had enmity with him. He also alleged that on 14-4-1973 Chandrapal s/o Natthu and his wife had also beaten him about which report (Ex. Kha-6) was lodged at P. S. Kotwali, Bijnor, and he got his injuries examined. Ex. Kha-5 is the original injury report prepared by Dr. P. D. Gupta.;