A. K. MATHUR J. - (1.) THIS appeal is directed against the judgment dated 21st of April 1977, passed by Sessions Judge, Sri Ganganager by which the learned Sessions Judge convicted appellant Seva Singh for offences under section 302, 148 and 447, I. P. C. , accused Jarnail Singh was convicted under sections 325,148, 326/149 and 447 I. P. C. , accused Mewasingh was convicted under section 148, 326/149, 325/149, 323 and 447 I. P. C. Accused Swarn Kaur was convicted under Section 148, 326/149, 325/149 and 323 and 447 I. P. C. The appellants were tried for offences under sections 302, 148 and 447 I. P. C. while accused Gurjantsingh was tried for offences under sections 148, 447, 302/149 336 I. P. C. and 27 of the Indian Arms Act.
(2.) BRIEFLY stated the facts of the prosecution case are that deceased Mansingh had 12 1/2 Bighas of land situated in sq. No. 7 of village 212 in his possession. On ll th of May, 1974, at about 7 a. m. he along with his brother Jugrajsingh had gone to cultivate his field. When he reached in his field, Gurjant Singh armed with a 12 Bor gun was standing in the field of complainant party. He was accompanied by Mst. Shwarnkaur, Jarnailsingh, Sevasingh & Mewasingh Except Gurjantsingh, all were armed with Gandasis. When the deceased tried to cultivate his field, Jarnailsingh made a fire in the air and asked Swarnkaur, Mewasingh, Sevasingh and Jarnailaingh to kill him, upon which, Swarnkaur ought hold the hair of Man Singh and inflicted injury on his right leg, Seva Singh inflicted Gandasi injury on the head, Mewa Singh inflicted Gandasi injury on the right knee of the deceased. On receiving these injuries deceased fell down and thereafter Jarnailsingh inflcted injury on the shoulder and back of the deceased. This brother Jugrajsingh raised alarm upon which the neighbours Iqbalsingh, Darshansingh and Jeetsingh came there. When they came near Gur-jantsingh again made fire in the air and after making the Fire the accused party ran away. Deceaseds bother also came in the field. The accused persons gave beating to Mansingh on account of the dispute with respect to the land regarding which the litigation was going on between the parties in the Court. Mansingh was brought to Ganganagar hospital by his mother, Iquabalsingh and other cersons and was addmitted in the hospital on 11th of May, 1974 where he died on 22nd of August, 1974. After the admission of Mansingh in the Hospital, his statement was recorded by Bhoorsingh and on the basis of the statement E. X. P. 10 recorded by Shri Bhoorsingh A. S. I. , and under section 307-147, 148, 324, 447, 149, I. P. C. and section 27 of the Indian Arms Act was registered against the appellants and Gurjantsingh. The Police, after necessary investigation, presented challan in the Court of Munsif and Judicial Magistrate, Sri Ganganagar. Initially the chargesheet was submitted on 13th of June, 1974, for the offences under sections ?07, 326. 447, 147, 148 and 149 I. P. C. , but after the presentation of the chargesheet Mansingh died and, therefore, the offence was converted from section 307 to section 302 I. P. C. and the aecused were tried for the offences as mentioned above. Prosecution, in support of its case, examined 15 witnesses, P. W. 1 Mst. Balwantkaur, P. W. 2 Jemtsingh, P. W. 5 Jugrajsingh and PW. 10 Darshan Singh are the eye witnesses of the incident. P. W. 3 is Dr. S. S. Bhargava, Radiolo Singh, who took the X-ray plates of the skull, left knee, right knee, left ankle, right scapule with shoulder of the deceased and gave his reading report of these X-rays, P. W. 7 is Dr. Ramlal who examined Mansingh on 1lth of May, 1974, when he was brought to Govt. Hospital, Sri Ganganagar and found 12 injuries on the person of Shri Mansingh P. W. 6, Bhagsingh P. W. 7 Hari singh of the Motbir witnesses to the recovery. P. W. 8 Kishan Singh is the Head Constable who regirtered the F. I. R. on the basis of the statement of Mansingh Ex. P. 16. P. W. 19 is Ratansingh L. C. who brought the statement Ex. P. 16 of Mansingh from Kotwali Gananagar to Police Station Matili Rathan for registering the case. P. W. 11 Prabhudayal Patwari Revenue has proved the Girdawari of Sq. No. 7 of village 212 in which the Rabi of Mansingh and others, sons of Arjunsingh and Jarnailsingh son of Sundersingh for the year 1973-74 has been entered. P. W. 12 is the Irrigation Patwari Bhagirath. P. W. 13 is Bhopalsingh who recorded the statement Ex. P. 16 of deceased Marsirgh at Government hospital Sri Ganganagar. P. W. 14 is Premnarain S. M. D. who conducted the investigation. P. W. 15 is Dr. M. P. Agrawal who conducted the post mortem examination of the deceased Mansingh. After recording the prosecution evidence, the statements of the accused under sec. 313 Cr. P. C. were recorded. Jarnailsingh, in his statement under sec. 313 Cr. P. C. , has stated that he had gone to Police Station to lodge the F. I. R. where he was arrested and hedenied all other allegations. He denied that he had given any information regarding the recoveries. The witnesses are stating against him on account of enmity. He has further stated that on the relevant day, he and Sevasingh were cleaning the water course, in the mean while Mansingh and his brother came there and tried to cultivate the field and when they asked them not to do so, their crop of cotton was standing in the field where upon Balwantkaur cought hold of him and Man singh inflicted Gandsi injury on his head which fell on his hand as he had already raised his hand. When Mansingh again tried to inflict injury upon him, Sevasingh caught hold of him and in the soufle Mansingh got the injury. Pritamsingh, Deepsingh, Nathasingh Harisingh intervened. Jarnail Singh further stated that he is in possession of the land in question for the last 2\ years. Prior to this also he was in possession of this land and this land was allotted in his name. Litigation with respect to this land was going on between him and Mansingh. Seva Singh, in his statement under section 313 Cr. P. C. also denied all the allegations and his statement is also similar to the statement of Jarnailsingh. Mewasingh and Swarnkaur denied the allegations and pleaded alibi. The accused persons also produced D. W. 1 Dr. Ramlal and D. W. 2 S. S. Bhargava in defence. Jarnailsingh and Sevasingh also appeared as the defence witnesses as D \v. 3 and D. W. 4. The learned Sessions Judge, after trial, convicted and sentenced the accused appellants as mentioned above. The learned Sessions Judge, however, acquitted accused Gurjant Singh. The learned Sessions Judge while convicting and sentencing the accused-appellants came to the conclusion that the possession over the land in question was of the complainant party, the incident took place in Killa No. 6 of Sq. No. 7 of village 212 which was in possession of Mansingh. The learned Sessions Judge also found that the witnesses are reliable one and the incident was witnessed by four eye-witnesses, P. W. 1 Mst. Balwantkaur, P. W. 2 Jeetsingh P. W. 5 Jugrajsingh and P. W. 10 Darshansingh. The learned Sessions Judge was, however, of the opinion that so far as the intention of the accused was concerned, that was to give beating to Mansingh and they had no intention to kill Mansingh and, therefore he convicted accused Jarnailsingh, Mewa Singh and Swarnkaur for offences under section 148 I. P. C, but, he convicted Sevasingh for offence under section 302 I. P. C. as he had inflicted injury on the head of Mansingh which was (inflicted with an intention of causing such bodily injury which he knows that it is likely to cause the death. We have heard Shri Suresh Kumbhat, learned counsel for the appellants and the learned Public Prosecutor. It was argued by the learned counsel for the appellants that the land in question was allotted to Jarnailsingh and as such the accused party was in possession of the land and the complainant party was an aggressor. They came to the field of the accused party and started the trouble. The other contention raised by Mr. Kumbhat is that all the witnesses are interested witnesses and are related to each other and there are material contradictions and discrepancies in their statements and they cannot be relied upon. The third contention raised by the counsel for the appellant is that even if the prosecution evidence is to be taken as true even then no case under sec. 302 I. P. C. is made out. According to him, the incident took place on 11th of May, 1974, and Mansingh died on 22nd of August, 1974, and the death of Mansingh was not as a result of the injuries received by him at the time of the incident but the cause of death as stated by P. W. 15 Dr. M. M. Agrawal is bad sores, cachaxis, anamis, toxaemia and shock as a result of long bad riddon condition due to multiple injuries particularly head injuries. Mr. Kumbhat further submitted that accused Jarnailsingh died during the pendency of the appeal and as such the appeal of Jarnailsingh stands abated. Mr. Kumbhat further submitted that on the date of incident Mewasingh was about 16 years of age and Swarnkaur is a lady and are not previous convict and, therefore, they should be given benefit of probation.
(3.) THE learned Public Prosecutor has supported the judgment of the learned Sessions Judge. According to the learned Public Prosecutor, the possession over the land in question was with the decesased party. THE witnesses produced by the prosecution are fully reliable witnesses and are worthy of credence. According to him, the deceased Mansingh remained throughout in the hospital and cause of his death was on account of the injuries received by him at the time of the incident. Now so far as the question of possession is concerned, the prosecution has produced two witnesses to prove the possession of the complainant party. P. W. 11 is Prabhudayal Patwari who has stated that in the Revenue record Girdawari of Rabi crop for the year 1973-74 in Sq. No. 7 of village 212 has been entered as a joint crop of Mansingh and six sons of Arjunsingh and Jarnailsingh son of Sundarsingh. Copies of Girdawari Ex. P. 18 has also been placed on record. P. W. 12 Bhagirath who is irrigation Patwari has also stated that the Rabi crop for the year 1973-74 with respect to Sq. No. 7 of village 212 in Ola No. 1 to 10, 13, 14 and 15 the crop of Mansingh son of Arjun Singh has been shown. From the statement of these witnesses coupled with Ex. P. 16 the Girdawari of the land in question, it is clear that the possession over the land in question was of Mansingh deceased and not that of the accused party. When the possession over the land in question was that of the complainant party the deceased had every right to go on his land, and the accused party was not entitled to obstruct deceased Mansingh and his brother Jugrajsingh in going to their field. In this view of the matter, no right of private defence was available to the accused party as the complainant party was not the aggressor. Now so far as the evidence of the eye-witnesses in concerned, P. W. 1 Balwantkaur has stated that her son Mansingh was cultivating the land of Singarasingh son of Sundersingh. Previously, he had taken this land on Theka while afterwards he became the Mukhtiar of Singara Singh and continued cultivating the land. Jarnailsingh and Singarasingh are brothers. Mansingh has sown cotton crop in the land about 3-4 days prior to the date of the incident. On the date of incident Mansingh along with his uncle Jeet Singh and Iqubal Singh went to the field. Jugrajsingh is younger brother of Mansingh who was also with them. When they tried to cultivate the land Gurjantsingh came there. He was accompanied by Swarankaur, Seva Singh, Mewasingh and Jarnailsingh. Gurjantsingh was armed with gun, while Sevasingh, Mewasingh, Swarnkaur and Jarnailsingh were armed with Gandasis. Gurjantsingh made a fire and the remaining accused said that the enemy has come so kill him. Swarankaur caught hold of Mansingh by the hair and inflicted injury on his right leg by Gandasi, Sewasingh inflicted injury on the head of Mansingh. Mawasingh inflicted injary on the leg of Mansingh and Jarnail Singh inflicted injury on the back of Mansingh. He then fell down and all of them gave beating. Jugrajsingh raised cries upon which she came there and saw the accused parsons giving biating to her son Mansingh. Mansingh became unconscious and they brought Meansingh to Ganganagar hospital. She was cross-examined at length by the counsel for the accused but her testimony could not be shattered. Similar is the statement of eye-witnesses P. W. 2 Jeetsingh, P. W. 5 Jugrajsingh and P. W. 10 Darshansingh and they have fully corroborated the statement of P. W. I Balwant-kaur. We have carefully gone through the statements of P. W. 1 Balwantkaur, P. W. 2 Jeetsingh, P. W. 5 Jugrajsingh and P. W. 10 Darshansingh. These witnesses were cross-examined at length by the counsel for the accused but nothing could be allowed from them which may induce us to discard the testimony of these witnesses. Their evidence cannot be discarded merely on the basis that they are interested witnesses and are related to deceased. Merely because the witnesses are related to the deceased that is no ground for discarding the evidence of these truthfull witnesses. The presence of these witnesses at the scene of the occurrence is natural and probable. Jugrajsingh is the younger brother of the deceased who had gone to the field with Mansingh for the purpose of cultivation. Smt. Balwantkaur P. W. 1 had brought tea for their two children. So far as the presence of P. W. 2 Jeetsingh and Sersingh are concerned, that also appears to be natural and probable one. The learned Sessions Judge after going through the evidence of these witnssses, found these witnesses as reliable one and looking to the facts and circumstances of the case, we are also of the view that these Witnesses are reliable witnesses and they have deposed truely and correctly what they have actually seen. In this view of the matter, the contentions raised by the counsel for the appellants that these witnesses are not reliable witnesses has no substance and we hereby reject the same. ;