N.P. Gupta, J. - (1.) THE three appellants Mahendra Kumar, Brij Lal and Rai Singh seek to challenge the judgment of the learned Sessions Judge, Sriganganagar dated 15.7.1986 passed in Sessions Case No. 89/85 convicting each of them for the offences under Section 302, 302 read with Section 34, 323, 323 read with Section 34 IPC and sentencing each of them for the offence under Section 302 with imprisonment for life, also sentencing each of them for the offence under Section 302/34 IPC for imprisonment for life and under Section 323 sentencing to 6 months' rigorous imprisonment and under Section 323/34 also sentencing to 6 months' rigorous imprisonment. All substantive sentences were ordered to run concurrently.
(2.) THE brief facts are, that one Balram P.W. 5 lodged a First Information Report on 12.11.1985 at 11.30 in the night at Police Station Sadulshahar being Ex. P/9, to the effect, that their agricultural land is situated in Chak 27 MJD Rohi Chapawali and near that is the land of their father's elder brother Sheochand. It is alleged that a government way and water course passes through the informant's land, while according to the Murabbabandi the way and water course should pass through the land of Sheochand, on that count there was enmity between the parties. With this it is alleged that on that day, he along with his brother Madan Lal and Hari Ram had returned after irrigating their fields, and after taking dinner the informant was going to the house of Mohan Lal, who happens to be informant's uncle, through the street, which street passes through front of house of Sheochand, at that time outside the house of Sheochand, the three accused persons, being sons of Sheochand were standing there at about 8 P.M., Mahendra was armed with Kassiya, while Rai Singh and Brij Lal were having Lathis. Seeing the informant all the three challenged that the informant troubles them day in and day out on the ground of way and water course, and therefore he would not be spared today. He was stopped from proceeding ahead, Brij Lal inflicted a Lathi blow, which landed on his left ear, Rai Singh inflicted another Lathi blow, which landed near his left eye. Then Mahendra inflicted Kassi blow, which hit his left lip, whereupon he raised a cry, which attracted his brothers Hari Ram and Madan Lal. It is then alleged that Mahendra with intention to kill Hari Ram inflicted a Kassi blow on his head, and simultaneously Rai Singh and Brij Lal also inflicted Lathi blows on the head of Hari Ram, as a result of which Hari Ram fell down. After falling, Mahendra inflicted yet another Kassi blow, and Brij Lal inflicted Lathi blow, on the head of Hari Ram. The cry attracted their father Mani Ram also, on whose challenge, the accused persons ran away. Hari Ram's injuries were bleeding, and he had become unconscious. Thereafter he was put on a cot, and in a tractor carried to Sadulshahar hospital, and after leaving the injured at hospital, he has come to lodge the report. In the night, Hari Ram died, therefore, the case registered on the report for offences under Section 307 and 341/34 was converted into one under Section 302 also. The injuries of Balram were examined, the post mortem examination of Hari Ram was got conducted, site was inspected, and after completing necessary investigation challan was filed against the three accused persons in the Court of learned Upper Munsiff and Judicial Magistrate, Sriganganagar, where -from the case was committed. The learned trial Court framed charges under Section 302 and 302/34, so also for the offence under Section 323 and 323/34 IPC. The accused persons obviously denied the charges. In trial the prosecution examined 7 witnesses, and tendered in evidence 24 documents, while the accused persons in their statement under Section 313 stated, that there is enmity between the parties on the ground of way and water course, on which count Balram and Hari Ram entered their house and gave beating, and a false story has been cooked up. It was also given out, that the day of incident was Diwali, at about 7.30 in the evening Mahendra had gone to the house of Rajendra and Mahendra son of Sahi Ram, while Brij Lal and Rai Singh had gone to the other house received from their maternal grandfather, for lighting Diwali lamps. At about 8 PM Balram and Hari Ram came to their house, entered the Angan duly armed with Lathis, were under the influence of alcohol, and started hurling abuses, they were asked to desist by the mother of the accused persons, being Tulsi, whereupon Balram inflicted injury on the head of Tulsi, who fell down. Accused Mahendra, who was in the house, intervened. Then Balram and Hari Ram inflicted injuries on his head also. Thereupon Mahendra picked up Lathi available in the house and exercising the right of private defence of himself and his mother, he started inflicting injuries on Balram and Hari Ram. Then Balram and Hari Ram went out along with Lathis, Hari Ram fell down. Then he was taken away along with Lathi. It was at about quarter past 8, that Rajendra came, to whom the entire episode was narrated, Rajendra arranged for tractor trolley and carried Mahendra and Tulsi along with Prithvi son of Sahi Ram, another Prithvi son of Dakar Ram to Sadulshahar, and when they reached near Railway crossing, the SHO along with Balram's party met them, and they were taken to police station, their mother, another Prithvi and Hari Ram were taken to hospital. When the incident was narrated to police people, they did not lend any ear, rather at about 3 PM, except Mahendra other persons were left away and from the village, they apprehended Balram (sic Brij Lal) and Rai Singh, and false case has been prepared. In defence the accused persons examined Tulsi, their mother as D.W.1, and also tendered in evidence three documents, being Ex.D/1 to D/3. After completing the trial, the learned trial Court convicted and sentenced the accused persons as above.
(3.) ASSAILING the impugned judgment, learned Counsel for the appellant submitted, that the entire prosecution case is full of doubts, rather is a concocted story, sought to be supported by distorted evidence. In the first place it was submitted, that of course there is enmity between the parties on the ground of way and water course, but then, since the water course is already passing through the field of the victim party and it is the victim party, who desires that the way and water course should pass through the field of accused persons, it cannot be said that this enmity could provide any motive to the accused persons to commit the incident. In the next place it is submitted that the evidence of two eye -witnesses being P.W.5 and P.W.6 Balram and Madan Lal cannot be believed, for the reason, that their evidence does not tally with the medical evidence in regard to the number and location of injuries, and the discrepancy appearing has a material bearing on the controversy, inasmuch as, according to both the witnesses more than one injury is caused by the accused Mahendra with Kassi on the head of Hari Ram, while there is only one sharp edged injury on the head of Hari Ram, which too is simple one, and if read with the evidence of P.W. 1 Dr. Somprakash, it was injury No. 1 only which was fatal, while that injury No. 1 is a lacerated wound, and in all also there is only one sharp edged injury even on the person of the deceased, as such, apart from the fact that their evidence cannot be believed, it cannot be said with any certainty, as to how injury No. 1 was received by the deceased Hari Ram. Another submission made is, that as is clear from the evidence of P.W. 1 and 7, that accused appellant Mahendra and his mother Tulsi had also received injuries as noticed in Ex. D/2 and D/1 respectively, and which were received in the same incident. P.W. 1 has proved the reports Ex. D/1 and D/2 and has given the duration of injuries, while P.W. 7 has clearly stated, that these injuries were received by the victims, Mahendra and Tulsi in the same incident, as against which the prosecution party has clearly denied any injuries having been received by these two persons, so much so that the two eye -witnesses P.W. 5 and 6 have gone to the extent of stating that they did not see Tulsi there. Thus, the origin of the incident has not been correctly projected by the prosecution, and it probablises the incident to have occurred in the manner as suggested by the defence, and substantiated by the evidence of D.W. 1 Tulsi. The next submission made is, that a combined reading of Ex. P/9 and the statement of P.W. 5 Balram would show, that they are making attempts to shift the place of incident, inasmuch as, a reading of Ex. P/9 shows, that the informant means to convey that the incident occurred outside the house of the accused persons, where they were standing, while on the other hand according to P.W. 5 the incident is described to have occurred outside the House of Nandram, which is at a distance. Obviously there is nothing to show, that the accused persons had any information or knowledge about the victims likely to come at that place, so as to be standing duly armed with weapons, waiting for them to commit the incident. With this it was also submitted, that as is clear from post mortem report Ex. P/1 and the statement of the doctor P.W. 1 that there was alcohol smelling out from the stomach of deceased Hari Ram, while according to P.W. 5 immediately on receiving injury, Hari Ram became unconscious, and on suggestion of the persons gathered there the deceased was administered one cup of liquor, while according to P.W. 6 Madan Lal, the deceased was administered a glass of water, which is categorically denied by P.W. 5, and it is required to be comprehended, that a person lying unconscious cannot be made to consume alcohol, so as to allow it to travel upto the stomach. This aspect has been highlighted to contend, that this probablises the defence's version, about the two persons having come to their house under influence of alcohol, and to have committed the incident. It was also submitted that Mani Ram, who was the father of the victims, who is also said to have come, and on whose arrivals, the accused persons went away, has not been examined by the prosecution in the Court, though according to P.W. 7, the I.O., his statements were recorded during investigation. In substance, it was sought to be contended, that the incident was covered by the right of private defence of the accused Mahendra and his mother Tulsi. Thus, no offence is made out.;