G.Malaviya, J. - (1.) THE appellants in these two appeals were tried by the Vth Additional Sessions Judge, Hamirpur in Session Trial No. 248 of 1978. All of them were convicted under section 302 Indian Penal Code and were awarded life imprisonment against which this appeal has been preferred in the High Court.
(2.) ON 25-6-1978 a First Information Report was lodged at Police station Panwari at 8.45 A.M. by one Ganga alleging that his son Roop Singh had been done to death by the appellants. It was alleged that gabout a year prior to the incident Roop Singh had mis -behaved with the wife of Amar Chand accused. A panchayat was called where the panchas got a compromise effected between the parties. However the parties were harbouring ill will on account of the said incident. It was in this background that on the 24th August, 1978 at about 5 p.m. Roop Singh deceased had gone to the shop of Guljari Bania to purchase Biri and tobacco. When he did not return for about an hour Ganga the complainant, father of Koop Singh went to find him out. When he reached near the shop of Guljari he saw that Har Prasad with kulhari and the other- appellants with barchhis were causing injuries to his son inside the court-yard of the shop of Guljari. He and other persons challenged the assailants who after coming out from the shop" went towards their houses. His son Roop Singh had also wielded lathi on Sewa Ram appellant. When the complainant and other witnesses went near Roop Singh they found him dead. The assailants had left the axe and two towels near the dead body. Since while coming to lodge the report on the previous evening it rained heavily with the result that the Deolari river in between had over-flooded, he could not lodge the report in the previous evening and he had come to lodge the report after the water in the said river had receded. ON the said report the case was registered against the accused persons and the investigation was taken up by the Sub-Inspector Lakhan Singh Parihar, PW 7. He went on the spot, made the necessary recoveries, prepared the inquest as also the site plan and sent the dead body for post mortem examination. He searched the accused but could not find them. However the investigation was completed by S.I. Lalloo Singh, PW 8 who submitted the charge sheet whereafter the accused were committed to stand their trial before the court of Sessions. The accused had denied the charge and claimed to be tried. At the trial the prosecution examined PW I Ganga father of the deceased, PW 2 Kripal and PW 3 Man Mohan as witnesses of fact. The prosecution also examined Dr. P. N. Singh, who had conducted the post mortem examination on the body of the deceased on 26-6-1978 at 12 noon, apart from other formal witnesses. The doctor had found the following ante-mortem injuries on the person of the deceased :- "1. Multiple incised wounds on both sides of face in area of 11 cm x 12 cm total 9 in no. ranging from 3 cm x 1 cm x bone deep to 2 cm x 0.3 cm x bone deep blood clots present, fracture of lower jaw in the centre and Rt., Upper Jaw present. 2. Contused swelling 4 cm x all wound on back of head on left side near parietal eminence of left perietal bone present. Comminuted, clot present. 3. Incised wound 3 cm x 2 cm x brain deep on left side of back of head 6 cms. below Inj. No. 2 Brain matter coming out of left occipital bone. 4.Incised wound 8 cm x 4 cm x bone deep on Rt. side neck upper & middle part, Caroted vessels cut, blood clots present all around. 5. Incised wound 3 cm x 2 cm x bone deep on left side upper part neck, left lower jaw-parital present. 6. Multiple incised wound on left side of chest in area of 15 cm x 10 . cm total 4 in no. each ranging from .05 cm x 0.3 cm x cavity deep to 3 cm x 2 cm x cavity deep, clot present. 7. Incised wound 1.5 cm x 0.3 cm x cavity deep on left side of abd. Walls 5 cm from midline and 13 cm above the umbilicus. 8. Incised wound 1 cm x 0.5 cm x cavity deep on left side back 10 cm from midline, clot present. 9. Incised wound 1 cm x 0.5 cm x muscle deep on Rt. thigh outer part 11 cms above the Rt. knee, clot present. As stated above the sessions Judge found the case made out against the appellants with the result that the appellants were convicted and have since preferred this appeal in the High Court. The accused in their defence examined one Alakh Narain-Pharmacist to prove the bed head ticket of Sewa Ram showing that he had received an injury on his head; as also DV 2 Dr. S. N. Dikshit and DW 3 Dr. N. L. Khatolya who just testified about the said injury. Whereas Sewa Ram in his statement under section 313 CrPC had alleged that he was hit by the deceased by lathi and he became unconscious, the other accused stated that Roop Singh after striking a lathi at. Sew Ram, due to which his head had a lacerated wound, was trying to drag him inside Guljari's house and they attacked Roop Singh to save Sewa Ram.
(3.) WE have heard Sri P. N. Misra learned counsel for the appellants and Sri Jagdish Tewari, learned State Counsel. Ganga PW 1 states that when his son Roop Singh did not return for about an hour then he went to search him. When he reached near the shop of Guljari he saw the four appellants striking his son with kulhari which was in the hands of Har Prasad and Barchhi which was in the hands of other accused persons. When challenged the assailants fled away. His son had also wielded a lathi on Sewa Ram. Roop Singh died due to said injuries. The assailants had left the axe the BENT of which had got broken. There also two small turbans-one of Har Prasad and the other of Sewa Ram. After entrusting the dead body to the chowkidar he went to the police station to lodge the report but as there was flood in river Keolari he could not cross it. In the morning he went through the water which was chest deep and dictated the report at the police station Panwari. He gave out that his son Roop Singh had teased the wife of Amarchand accused for which a panchayat was called; Roop Singh had apologised but the assailants were harbouring ill will against Roop Singh since then. In the cross-examination he admitted that his house was at a distance of about 100 or 200 paces west from the place of Guljari. He also asserted in the cross-examination that Roop Singh had,struck lathi on Sewa Ram in the courtyard of Guljari and not in the verandah. He denied that he had given the following statement to the Investigation Officer :- "MANMOHAN TEWARI NE BATAYA THA KI MERE LADKE ROOP SINGH NE BHI SEWA RAM KE EK LATHI MART THT." He could not explain how this statement has" been recorded by the Investigation Officer. He also denied having made some other statement to the Investigating Officer. He further admitted that he did not know the quaerel had started between the parties and said that such witnesses who must have been present there from the very beginning would be knowing about the genesis of occurrence. He also admitted that he could not say how the kulhari had broken down. By the time he had reached there the kulhari had already broken. Ultimately he denied the suggestion that he was not present at the time of incident.;