R.A.Misra, J. - (1.) SARVASRI Bhola Nath, Momal Prasad, Chhotey Lal, Kallu Ram and Mangli were real brothers and resident in village Dhankuni in the district of Pilibhit. Bhola Nath possessed about 18 bighas of agricultural land. He died leaving his only son Chheda Lal as his heir when Chheda Lal was a minor aged about 12 years. Chheda Lal was mentally infirm. Chhotey Lal his uncle looked after his person . and property including the agricultural land as his guardian after the death of his father and had cultivated sugar cane crop in a chak of six bighas in the year 1976. Chheda Lal separated himself from the guardianship of Chhotey Lal a few days before the occurrence of this case and began to reside with his first cousin Jiwan Lal (PW 5) son of Kallu Ram. Narain (PW 1) is also a first cousin of Chheda Lal being the son of Komal Prasad deceased. Narain (PW 1) and Jiwan Lal (PW 5) were cutting the aforesaid sugar cane crop on 21st of March 1976. Chheda Lal was also present there. The accused appellant Hori Lal aged about 22 years armed with a Kassi reached there along with his father Chhotey Lal at about 9 A. M. Chhotey Lal was armed with a lathi. Both began to abuse Narain (PW 1) and Jiwan Lal (PW 5) and assaulted them causing two lacerated wounds to each. Thereafter Hori Lal and his father left the place. Narain (PW 1) and Jiwan Lal (PW 5) reached their home after about 15 minutes of this occurrence and there again Hori Lal appellant and Chhotey Lal attacked them. Narain (PW 1) was armed with a Danda. He began to ply the Danda causing injury to Chhotey Lal, just then Komal Prasad the father of Narain (PW 1) reached there to save him. Hori Lal dealt a lathi blow on his head. He fell down and became unconscious. Narain carried his father to the Police Station and lodged FIR there at 12.10 P. M. on the same date. Komal Prasad was examined by Dr. A. Kumar, Medical Officer, Primary Health Centre Neoria at 4' P. M. and found one lacerated wound 4 cm x 1 cm x 1.5 , cm on the left side of head 8 cm above the left ear. Komal Prasad succumbed to the injuries on the same night at 11.30 P. M. in the District Hospital Pilibhit. Hari Ram Sharma (PW 6) investigated the case and submitted charge-sheet against Chhotey Lal and Hori Lal. The prosecution examined Narain (PW 1), Pope Ram (PW 4) and Jiwan Lal (PW 5) as witnesses of fact over and above five other witnesses. The learned Sessions Judge, on a consideration of entire evidence arrived at the conclusion that the accused did not commit any offence by causing injuries to Narain (PW 1) and Jiwan Lal (PW 5) at the sugar cane crop field. He however arrived at the conclusion that the occurrence which took place subsequently at the house of the accused was a free fight among four persons, with the two accused on one side and the two PWs. nos. 1 and 5 on the other side and in that fight the accused Hori Lal appellant caused fatal injury to Komal Prassd and thereby committed an offence punishable under section 304 IPC. He has, therefore, acquitted Chhotey La! but convicted the accused appellant Hori Lal under section 304 IPC and. sentenced him to undergo R. I. for a period of seven years. He has felt aggrieved and come up in appeal.
(2.) I have heard learned counsel for both the parties and have gone through the evidence on record with care. It is in evidence that Chheda Lal son of Bhola Nath was minor suffering from mental infirmity when his father died leaving him and his property under the guardianship of Chhotey Lal. It is also in evidence that since the death of Bhola Nath till a few days before the occurrence of this case, Chheda Lal as well as his property was being looked after by Chhotey Lai. It is further proved that Chhotey Lal cultivated sugar cane crop in the chak of six bighas which belonged to Chheda Lal. Under these circumstances the learned Sessions Judge has rightly held that Chhotey Lal was in possession of the crop and. as such the accused did not commit any offence when they caused injuries to Narain (PW 1) and Jiwan Lal (PW 5) who were cutting the aforesaid crop. It is also proved that in the incident which took place at the sugar cane crop field the accused Hori Lal and Chhotey Lal did not receive any injury. Narain (PW 1) and Jiwan Lal (PW 5) did receive two lacerated wound each in that incident. It is evident that both the accused Chhotey Lal and Hori Lal left the sugar cane crop field for their residence after causing injuries to Narain and Jiwan Lal. It is also in evidence that it was nearly 15 minutes after the first occurrence that Narain and Jiwan Lal reached the place where the second occurrence took place. The Investigating Officer has found blood at points shown by letters B and C in the site plan prepared by him and according to him he found the blood inside the Angan of the house of accused Chhotey Lal. He has shown in the same site plan the place of actual occurrence with letter and. it is the main door of Chhotey Lal's house. Pope Ram (PW 4)' has admitted in his cross-examination that it was at the door of Chhotey Lal's house where Narain (PW 1) dealt a lathi blow on the person of Chhotey Lal. He has further admitted that on receiving the lathi blow caused by Narain, the accused Chhotey Lal fell down in the Angan of his house. He has further admitted that Komal Prasad also fell down at the door of Chhotey Lal's house. Subsequently he admitted that both Chhotey Lal and Komal Prasad fell down in the Angan of the house. A futile attempt has been made by Narain (PW 1) to establish that the occurrence has taken place beneath a guava tree at a distance of 30-35 steps from the house of the accused. The only possible conclusion which can be drawn from the evidence on the record is that the second occurrence took place at the house of the accused Chhotey Lal and Hori Lal.
(3.) AS I have observed above the accused Chhotey Lal and Hori Lal did not receive any injury in the first incident which took place at the sugarcane crop field. Only PWs 1 and 5 received lacerated rounds in the first incident. The evidence on the record shows that in the second, incident Chhotey Lal accused received one lacerated wound 5 cm x 0.5 cm x 0.5 cm, 7 cm above right ear and this injury was admittedly caused by Narain (PW 1.). The evidence further shows that Hori Lal accused appellant also received two injuries in the second incident. The fact that in the second incident Narain and Jiwan Lal did not receive any injury whereas Chhotey Lal and Hori Lal did receive injuries, makes the prosecution story improbable that Hori Lal and Chhotey Lal were -aggressors in the second incident. Moreover there was no occasion for the accused to have been aggressors at their own house because in the first incident they did not receive any injury, though they had caused injuries to Narain and Jiwan Lal. It is proved beyond doubt that the second incident took place at the residence of the accused in which the accused received injuries. In all probabilities had the accused been aggressors they would certainly have caused a few injuries to Narain and Jiwan Lal in the second incident also. Where an occurrence takes place at the residence of the accused and inside their house in which only the accused receives injuries, it is impossible to believe that they were the aggressors or that it was a case of free fight. The accused were at their own residence when Narain and Jiwan Lal reached there and caused injuries to them. They had no option but to defend themselves. No case of free fight is made out from the evidence on the record and the finding of the court below that it was a case of free fight at the residence of the accused is incorrect. The only possible conclusion which can be drawn from the evidence on record is that Narain PW 1 and Jiwan Lal PW 5 were aggressors and wanted to take revenge of the first incident in which they received injuries. Narain (PW 1) says that when he caused Danda injury to the accused Chhotey Lal then the accused Hori Lal dealt lathi blow causing fatal injury to Komal Pd. He has denied the defence suggestion that the accused Hori Lal used a lathi and defence of his father and the lathi blow accidentally landed on the head of Komal Prasad. Jiwan Lal (PW 5) says that Komal Prasad reached the scene of occurrence to pacify the parties and Hori Lal accused dealt lathi blow on his person. He has denied the defence suggestion that the accused Hori Lal used his lathi in defence of his father and just then Komal Prasad came in between and received the injury by accident. Pope Ram (PW 4) has admitted, in his cross-examination that accused Hori Lal used a lathi in self defence when his father fell down on receiving a head injury and thereby caused the fatal injury to Komal in self defence. It is abundantly clear from the evidence on record that deceased Komal Prasad was not a party in either of the two incidents. He admittedly reached the sence of the second incident to intervene and pacify the parties. The accused Hori Lal could have no motive for causing any injury what- soever to Komal Prasad. The defence theory is that when Chhotey Lal fell down on receiving the head injury, then Hori Lal in exercise of the right of self defence, aimed a lathi blow on Narain who had caused the injury to his father and in the mean time suddently Komal Prasad came in between Hori Lal and Narain and the lathi blow which was aimed at Narain accidentally landed on the head of Komal Prasad causing the fatal injury. The defence has examined Shyam Lal (DW 1) who has fully supported the aforesaid theory of the defence. He swears that the accused Narain cealt a lathi blow on the person of Chhotey Lal who fell down in the Angan. Narain aimed another lathi blow and then the accused Hori Lal rushed for the defence of his father. He was with a lathi and wanted to assault Narain (PW 1). Suddenly Komal Prasad came in between and the lathi blow landed on his head. Komal Prasad fell down. He is a close neighbour of the accused as well as the complainant. He is a natural witness of the occurrence. He has been cross-examined, at length but nothing has been pointed cut to discredit his testimony except the obvious fact that he is a defence witness. It is not possible to discard the testimony of a witness simply because he appears for the defence. The courts have to give cogent reasons for discarding the sworn testimony of a witness irrespective of the fact whether he appears for the prosecution or for the defence. The learned Sessions Judge has not given any good reason for discarding the sworn testimony of this witness. The defence version is supported by this witness and appears more probable than the prosecution story because as held above there v,as no motive for the accused to assault Komal Prasad who reached there for a good cause, to with for pacifying both the parties. The real assailant Narain who had caused the injury to Chhotey Lal was present there and there was no reason for the accused to leave him and assault Komal Prasad in self defence. The only possible conclusion which can be drawn from the evidence on the record is that when Chhotey Lal fell down on receiving the head injury, then his son Hori Lal aimed the lathi blow in defence of his father. It was aimed at the assailant Narain but suddenly Komal Prasad came in between the two and the lathi blow which was meant for Narain, landed on head of Komal Prasad causing the fatal injury.;