M.R.SHARMA, J. - (1.) GURDEV Singh and Mangta, appellants, are stated to have caused fatal injuries to Ajaib Singh (deceased) in furtherence of their common intention to commit his murder on 10.3.1980 at about 8 p.m. The learned trial Judge convicted and sentenced them as under: Rigorous imprisonment for three years and a fine of Rs. 500/ - each and in default of payment of fine, further rigorous imprisonment for six months, under section 304, (Part I) of the Indian Penal Code (for short the Code). Gurdev Singh and Mangta have filed Criminal Appeal 288 -SB of 1981 against their conviction. The State of Punjab has filed Criminal Appeal 570. DBA of 1981 against their acquittal under section 302 read with section 34 of the Code, with a prayer that they should be convicted under section 302 read with section 34 of the Code. Since the two appeals arise out of the same incident, so they are being disposed of by one common judgment.
(2.) IT is an admitted case of the prosecution that Gurdev Singh appellant and Ajaib Singh (deceased) were real brothers and both of them were living in separate rooms of the same house. Ajaib Singh (deceased) had borrowed a tape -recorder from Mangta appellant some time prior to the present occurrence. On the fatdul day, Mangta appellant approached Ajaib Singh (deceased) for the return of the tape -recorder, but the latter was reluctant to do so and stated that he would return the same on the following morning Mangta appellant was bent upon getting the tape -recorder at that very moment. Both of them grappled with each other. Mangta appellant snatched the tape -recorder from Ajaib Singh and then gave it to Tari son of Gurdev Singh, appellant. Meanwhile, Gurdev Singh appellant arrived at the science of occurrence and he separated both of them. Ajaib Singh (deceased) felt annoyed. Mangta, however, succeeded in extricating himself and went into the room of Gurdev Singh, appellant. Both of them started calling bad names to Ajaib Singh (deceased) who, too, paid them back in the same coin. Ajaib Singh picked up a Gandasa from his house and went outside in the courtyard. From the other side, Gurdev Singh, armed with a Gandasa Ex. P.1 and Mangta with a Kirpan Ex. P. 2 came out in the courtyard. The two parties started altercating with each other. Ajaib Singh (deceased) then gave a Gandasa blow to Gurdev Singh appellant on his head. This appellant retaliated and gave a blow with his Gandasa on the right arm of Ajaib Singh (deceased). On the receipt of this blow Ajaib Singh tried to run away. This appellant give him another blow on his left shoulder. Mangta appellant gave some blows to the deceased with his Kirpan. Ajaib Singh, however, succeeded in running away from the street. Santa Singh (PW 3) had also witnessed this occurrence. Since Gurdev Singh had been injured, his son Tari, Rulda Singh Sarpanch and Mangta put him in the tractor -trolley of Darbada Singh and brought him to the hospital at Mehal -Kalan.
(3.) SMT . Parkasho (PW 4) widow of Ajaib Singh made a search for her husband during the night which proved abortive. On the next morning, she found the dead body of Ajaib Singh on the inner side of the Circular Road, near the bus stand. Upon this, she went to Police Station Mehal Kalan and lodged the first Information Report, at 7.30 a.m. on 11.3.1980. On the basis of this report, a case under section 340 (Part I) of the Code was registered against the two appellants.;