- (1.) S. S. Kulshrestha, J. Heard the learned Counsel for the accused appellants and the learned A. G. A. and also perused the judgment of the Court below.
(2.) THIS appeal has been brought against the judgment and order dated 28-3-1981 passed by the Additional Sessions Judge, Rampur in S. T. No. 74 of 1980, State v. Fauja Singh and 4 others, whereby convicting the accused appellants Sri Fauja Singh, Sri Balkar Singh, Sri Kashmir Singh, Jagir Singh for the offences under Sections 302/149 and 148 IPC and sentencing them for life imprisonment under Section 302/149 IPC with two years rigorous imprisonment under Section 148 IPC and also convicting Smt. Kapoor Kaur for the offences under Sections 302/149 and 147 IPC and sentencing her under Sections 302/149 IPC for life imprisonment with one year's rigorous imprisonment under Section 148 IPC. All the sentences to be run concurrently. Accused appellant Sri Fauja Singh is reported dead. Consequently this appeal stands abated against him. It is said that the trial Court has not properly appreciated the materials on record. It was a clear case where right to private defence was available. Even if it was found that while acting for protecting private defence the accused appellant Sri Fauja Singh exceeded his limit, Section 302 IPC would not be attracted. The deceased himself attacked on Sri Fauja Singh and he became so violent and attacked on him inflicting injuries on the various parts of the body and so the appellants were justified to have given blows in the right of private defence. The prosecution stand is that it was a clear case of deliberate killing and there was no basis for interfering with the reasons given by the trial Court. The trial Court had rightly rejected the plea of self-defence so pleaded in the course of trial. In order to facilitate the disposal of this appeal a brief resume of the facts may be made. Smt. Gurbachan Kaur lodged a report (case crime No. 31/79) at the police station with regard to the incident dated 28. 1-1-979 at 11. 00 p. m. in the night at Village Gularia Tuyla, P. S. Bilaspur, District Rampur. This report was lodged by her on 29-1-1979 at 7. 15 a. m. and the reason had also been assigned for not lodging the report in the night contending that it was raining and because of the fear of the accused appellant she could not reach at the police station, which was at a distance of about 7 Km. It was reported by her that on that fateful night at about 8. 00 p. m. her husband was taking food. He gave a piece of bread (Roti) to the dog, which did not eat it. On it her husband remarked satirically the dog being mad. On it her neighbour Sri Fauja Ram (armed with Darati), Sri Balkar Singh (armed with sword), Sri Kashmir Singh (armed with Farsa) and Sri Jagir Singh (armed with Gandasa) came at her house and on the exhortation of Smt. Kapoor Kaur (armed with Lathi) they caught hold her husband Sri Ajit Singh and dragged him inside their house. She also raised hue and cry. Her daughter Sukhvinder Kaur and other relation namely Sri Bahadur Singh, who was also present in the house on that day, went to rescue her but of no avail. They had taken him inside the hut of their house. They all were identified in the lantern light. They all gave severe blows and also cut of his head. Further Sri Fauja Singh also threatened to the witnesses that if they would not run away from that place they might face the same consequence. The police in the course of investigation had prepared the inquest report (exhibit Ka 2) wherein the number of injuries sustained by the victim were also shown. Blood stained earth was also collected from the spot where the dead-body was lying and its recovery memo (exhibit Ka 7) was also prepared. Recovery memos with regard to the lanterns, burning at the house of Sri Fauja Singh (exhibit 8) and at the house of the complainant (exhibit Ka 9) were also prepared. The Investigating Officer had also taken into his possession the blood stained Darati which was used for giving blows to the victim and other weapons which were used in the commission of crime and had drawn its Fard (exhibit Ka 13 ). Recovery memo of blood stained clothes (exhibit Ka 12) of the victim was also prepared. The dead-body was taken for post- mortem by Constables Gajraj Singh and Chhtra Singh. Autopsy on the dead-body of the victim was done by Dr. N. M. Agarwal, District Hospital, Behraich and he found following anti-mortem injuries: (1) Incised wound 4 cm x 0. 5 cm x muscle deep on rt. side frontal region of scalp 5 cm. above middle of eyebrow. (2) Incised wound 12 cm x 6 cm x muscle deep lying transversely on sub-mental region or neck and directing backwards (Paper Torn ). (3) Incised wound 13 cm x 10 cm x through and through, across the neck at the level of body of VIth cervical vertebra. All the structures of the neck cut through and through. Head is separated from body. Cut surface of vertebra of head corresponds to the cut surface of vertebra of body. (4) Incised wound 5 cm x 0. 5 cm x skin deep on outer side of rt. arm just below tip of shoulder. (5) Abrasion 2 cm x 1 cm on front of rt. shoulder joint. (6) Contusion 10 cm x 3 cm on middle of rt. arm with fracture of underlying humerus bone. (7) I. W. 2 cm x 1 cm x muscle one back of rt. arm 2 cm above elbow. (8) Lacerated wound 2 cm x 0. 5 cm muscle on back of rt. forearm 4 cm. below elbow. (9) Abrasion 7 cm x 1 cm on back of rt. forearm 5 cm above wrist. (10) I. W. 2 cm x 0. 5 cm x muscle on back of rt. forearms 1 cm. above wrist. (11) I. W. 1 cm x 0. 5 cm x muscle on back of left forearm 3 cm below elbow. (12) Ah. Contusion 2. 5 cm x 2 cm on left side chest 7 cm below nipple at 7 O'clock position. (13) Ah. Cont. 1. 5 cm x 1 cm on front of left side chest 5 cm below nipple at 6 O'clock position. (14) Multiple Contusion varying in size from 3 cm x 1 cm to 10 cm x 2 cm rt. side back all over. (15) I. W. 8 cm x 1 cm x muscle on front of rt. thigh 4 cm. above knee. (16) Lac. Wound 2. 5 cm x 1 cm x bone deep on front of rt. leg 10 cm below knee, with fracture of underlying Tibia bone. (17) Lac. Wound 3 cm x 0. 5 cm x muscle on front of rt. leg 2 cm below inj. No. 16. (18) Abrasion 3 cm x 1 cm on front of rt. leg just above ankle joint. (19) Lac. Wound 3 cm x 0. 5 cm x muscle deep on middle of left leg. (20) Lac. Wound 1 cm. x 0. 5 cm x muscle on front of left leg 3 cm below Injury No. 19. (21) Lac. Wound 1 cm x 0. 5 cm x muscle on front of left leg just above inj No. 19. (22) Lobule of Rt. ear cut through and through.
(3.) IN the course of investigation the objects recovered on the basis of the statements made by the prosecution witnesses, were sent for chemical examination. It appears that the objects Nos. 1 to 4, 6 to 16 referred in Exhibit Ka 18, were stained with human blood and objects 3, 10 and 12 were stained with human blood of 'o' Group. Here in this case counter report of the incident was also given by the accused appellants which was registered on 29-1-1979 at 6. 30 a. m. at P. S. Bilaspur, Rampur at case crime No. 30/79 (exhibit Kha 1 ). Injuries of Sri Fauja Singh were also examined by Dr. J. C. Tripathi, who appeared as defence witness. He found following injuries on the person of Sri Fauja Singh: (1) Punctured wound 2 cm x 1/2 cm x muscle on back of left shoulder 6 1/2 cm below top of left shoulder. (2) Punctured wound 2 cm x 1/2 cm x depth not probed in the interest of health of patient appears chest cavity deep, difficulty in breathing and surgical emphysema present would situated on left side outer part of lower chest 9 cm below and behind axilla Adv. X ray chest for any internal injury. (3) Punctured wound 2 cm x 1/2 cm x depth not probed in the interest of the health of patient, difficulty in breathing and surgical emphysema present. Wound is situated on left side back of chest 2 cm medially to injury No. 2. (4) Penetrating would 2 cm x 1/2 cm depth not probed in the interest of health of patient appears to be abdomen cavity deep severe pain and rigidity present in and around the area of injury, would situated on left side lower back 4-1/2 cm above to posterior part of left iliac crest. (5) Linear Abrasion 9 cm in length left side back 10-1/2 cm from mid axillary line situated 4 cm above middially to injury No. 4. (6) Punctured wound 2-1/2 (7) Abrasion 1 cm x 1/2 cm on outer aspect of left upper arm 4 cm above elbow. (8) Linear Abrasion 2 cm in length on middle of outer aspect of left thigh. (9) Linear abrasion 11 cm in length on outer aspect of left thigh lower part knee and adjoining upper part of left leg. (10) Linear abrasion 7 cm in length on outer part back of left leg 13 cm above ankle.;