Gurnam Singh, J. - (1.) CHATTAR Singh son of Gurbux Singh, aged 65 years, Sahib Singh aged 20 years, Dalip Singh aged 28 years and Jodh Singh, aged 25 years sons of Chattar Singh, residents of village Ferozepur Khunda, police station Saddar Pathankot, were tried for the offences under sections 302, 302 read with section 34, 325 read with section 34, 324 read with section 34 and 323 read with section 34, Indian Penal Code, by the learned Additional Sessions Judge, Gurdaspur. Chattar Singh, Jodh Singh and Sahib Singh were acquitted of all the charges, but Dalip Singh was convicted under section 304, Indian Penal Code, and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/ - or in default, to further undergo rigorous imprisonment, for six months. Dalip Singh has filed Criminal Appeal No. 557 of 1972.
(2.) THE prosecution story, briefly stated, is that about 5 days prior to the present occurrence, the cattle of the appellant damaged the paddy crop of Dhian Singh, P.W. Dhian Singh in the company of Fauja Singh went to Chattar Singh appellant to lodge a protest but he (Chattar Singh) and his sons Jodh Singh and Dalip Singh quarrelled with him and abused him. Fauja Singh, however, intervened and separated them. On 21st August, 1971 at about 5/6 P.M. the cattle of the accused again damaged the crop of Dhian Singh, P.W. Amar Singh deceased and his sons Karam Singh and Dhian Singh, P.Ws., proceeded towards the house of the accused to protest and then they reached the Phirni, the accused met them and they lodged the protest. At that time Chattar Singh was armed with a Kirpan. Jodh Singh and Sahib Singh brought lathis from their house and Dalip Singh brought a Kirpan. It is alleged that Chattar Singh exhorted that Dhian Singh etc., should not be allowed to go alive. Dalip Singh gave a Kirpan blow on the right side of the neck of Amar Singh as a result of which he fell down. Thereafter Chattar Singh gave a Kirpan below on his head. When Dhian Singh intervened to save his father, Chattar Singh gave him a Kirpan blow, from its reverse side, on his forehead and Jodh Singh gave him 2/4 blows on his right arm with his Dang. Sahib Singh gave him two Dang blows on his left and right thighs. All the accused caused injuries to Karam Singh also, Amar Singh died at the spot. As Karam Singh and Dhian Singh were armed with Lathis and they used the same in self -defence so Dalip Singh, Jodh Singh and Sahib Singh received injuries. When Karam Singh became unconscious, the accused fled away. Leaving Gian Chand Chowkidar to guard the dead body of Amar Singh, Dhian Singh, P. W., went to police station Saddar Pathankot and lodged First Information Report, Exhibit P.H., with Assistant Sub -Inspector Darshan Singh. Assistant Sub -Inspector Darshan Singh came to the spot and prepared the inquest report, Exhibit. P.C., and sent the dead -body for post -mortem examination He also took into possession blood -stained earth and turned it into a sealed parcel. Dhian Singh and Karam Singh. P.Ws., were got medically examined. The accused were arrested on 23rd August, 1971. Chattar Singh accused produced Kirpan, Exhibit P. 1, and Dalip Singh Kirpan. Exhibit P. 2. 4 The post -mortem on the dead body of Amar Singh was conducted by Dr. K. N. Kaul on 22nd August, 1971 at 5 -00 P.M. and in his opinion death was due to shock and profuse haemorrhage due to injuries to the neck. The doctor further stated that injuries Nos. 1 and 2 on the body of Amar Singh deceased could individually be sufficient to cause death. Karam Singh. P.W. was examined on 22nd August, 1971, and Jodh Singh, Sahib Singh and Dalip Singh accused were examined on 23rd August, 1971. Dhian Singh was examined by Dr. A. N. Soni on 22nd August. 1971 at 1.50 A.M. The prosecution examined Dhian Singh and Karam Singh as eyewitnesses in the case. The plea taken up by Dalip Singh appellant was that he along with his brother Jodh Singh was sitting near their cattle in front of their house, that Amir Singh deceased, Karam Singh and Dhian Singh armed with Dangs came there that abuses were exchanged, that Amar Singh deceased opened attack on him and gave a Dang blow on his forehead, that they all continued assaulting them with their respective weapons, that they in their self -defence caused injuries to them and that Chattar Singh and Sahib Singh accused, since acquitted, were not present there. 3. Karam Singh, P. W., has admitted that his father Amar Singh deceased first gave a Dang blow on the head of Dalip Singh and thereafter Dalip Singh gave a Kirpan blow on his neck. The learned Sessions Judge relying upon Parichhat and others v. The State of Madhya Pradesh, : AIR 1972 SC 535 and in view of the fact that the head injury of Dalip Singh was simple held that he (Dalip Singh) had exceeded the right of private defence and as such convicted him under section 304, Indian Penal Code.
(3.) THE learned counsel for the appellant vehemently contended that it is not a case in which the appellant had exceeded the right of his private defence, rather Amar Singh deceased gave a Dang blow on his head and the companions of the deceased were also armed, so he apprehended unlawful aggression on their part and gave a Kirpan blow to Amar Singh and as such no offence was committed by him.;