- (1.) THIS is a Criminal Appeal under Section 374 Cr. P. C. against the judgment of Additional Sessions Judge, Alwar, in Sessions Case No. 195 of 1974, convicting the accused-appellant Kanhaiyalal under Sec. 323 Indian Penal Code and sentencing him to rigorous imprisonment for one year and a fine of Rs. 1,000/-, in default of payment of fine to undergo further imprisonment for three months.
(2.) KANHAIYALAL and five others were committed to the Sessions Court by the Munsif and Judicial Magistrate, Rajgarh to stand their trial under Sections 302, 307, 147/148/149 I. P. C. for having committed murder of one Vijay Singh and injuring others. The prosecution case as narrated by the Additional Sessions Judge in his judgment was as under; " According to the written report lodged by one Kanhaiya Lal son of Rawad Ram, Brahmin of the village Bhagat-ka-bas, the parties were on unhappy terms with each others and the accused Kanhaiyalal had filed a false case against the complaint party. On 21. 4. 74 a buffalo belonging to the complainant Kanhaiyalal happened to enter the enclosure belonging to the accused Kanhaiya Lal, upon which there was an exchange of abuses and a threat was given to take revenge. On the date of the incident i. e. 22. 4. 1974 at about 8 A. M. when Prabhu, a nephew of the complainant and his friend Thakur Vijay Singh were coming on a cycle towards Machadi village, they were beaten on the way by the accused Kanhaiyalal, his sons Netram, Khemchand. Hari Prasad and Kishori and Kishori's son Narayan, Kaliya Mina and 4 or 5 unknown persons. The weapons used by the above named accused were described in details and the injuries caused by each one of the accused on the injured were also described. Another nephew Chhote Lal of Kanhaiyalal and one Shambhu Dayal also happened to reach this spot and Pooran, Mathulal and Harphool were named as eye-witnesses and interveners. It was alleged that the cycle had been removed by accused Kanhaiyalal. After the beating Prabhu and Vijay Singh were removed to the hospital and Vijay Singh had very little hope of survival. Upon this the S. H. O. registered a case under Sections 307, 147/148, 149/324 and Sec. 324 I. P. C. and started the investigations. The injured were got medically examined and X-rayed. The site inspection note was prepared. The blood stained clothes were taken into possession, the accused were arrested, the alleged weapons of offence were recovered from them, site memo was prepared etc. Vijay Singh unfortunately died at Delhi where his postmortem examination was conducted. The blood stained clothes and the weapons suspected of being blood stained were sent for chemical analysis and later on some of them were sent up to the Serilogist also. After the death of Vijay Singh the charge of murder was also added and the accused were charge-sheeted with the above result. Before the trial court, charges under sections 148, 302 and in the alternative 302 read with Section 1 Sec. 307 and in the alternative 307 read with sec. 149, 302 and in the alternative 323 read with s. 149 I. P. C. were framed, read over and explained to the accused and their plea was recorded. All of them plead not guilty and claimed to be tried. In support of the prosecution case, oral and documentary evidence were produced. The oral evidence consist of the statements of complainants Kanhaiyalal. Shambhu Dayal, Nathuram, Babu Lal, Pooran and the police and the Medical Officer.
(3.) THE Additional Sessions Judge on the conclusion of the trial held that the accused party had a right to defend themselves and gave a good beating in reply, but this right was exceeded. After holding so, the Additional Sessions Judge then held that there was no satisfactory evidence as to which of the accused persons inflicted the head injury by blunt weapon or the incised wound in the chest of Vijay Singh. THE Court held that in their attempt to implicate as many persons as possible (including all the members of one family) the prosecution witnesses have reduced their credibility and reliability. THE court again held that no one definite accused can be held responsible for causing either head injury or the incised wound which alone were responsible for Vijay Singh's death. Having help so the Additional Sessions Judge took help of Section 72 of the Indian Penal Code and convicted Kanhaiyalal, Khem Chand and Hariprasad for the offence of voluntarily causing simple hurt for which the lowest punishment is provided. Mr. Maloo learned counsel for the appellant has invited my attention to para No. 16 and 17 of the judgment, which reads as under:- " 16. We have now to consider the part played by the remaining four persons Kanhaiyalal, Khemchand, Hari Prasad and Kaliya who is absconding. Since Kaliya is absconding the accused have taken the convenient plea of throwing the responsibility of causing the incised wounds on Kaliya. One incised wound was on the body of Vijay Singh and the other on Prabhu's body. Vijay Singh's wound as shown could have been caused except by a long sharp and penetrating weapon and Prabhu's wound could have been caused by a Pharsi because there is no expert evidence against this allegation. Thus two of the accused persons must have been armed with sharp edged weapons one with a Pharsi like weapon and the other with a sharp penetrating type of weapon. 17. The prosecution evidence on this point may also be usefully analysed. So far as Kanhaiyalal is concerned there is no positive allegation of use of any weapon. There is only a passing reference in the F. I. R. that he gave the call and was both beating and shouting. In his statement before the court Kanhaiyalal has alleged only the giving a sign and a call by accused Kanhaiyalal. On the point of giving a sign he has also improved in his cross-examination by saying that Kishori also gave the sign. This thing is absent in the F. I. R. Thus at the most Kanhaiyalal could have given the call but could not have participated in the incident because he has also escaped unhurt. At the most he might have used only a lathi and not a sharp edged weapon. On the basis of the above, Mr. Maloo has argued that Kanhaiyala's conviction is not based on any evidence as learned Additional Sessions Judge himself was doubtful what part he has played. Mr. Purohit has controverted the above submission of Mr. Maloo and pointed out that Kanhaiyalal was the person who asked the other accused to give beating and kill the deceased. The evidence of Kanhaiyalal complainant was referred to in this connection. It was also pointed out that Kanhaiyalal accused in his statement has pleaded that he has acted in the right of private defence. The relevant portion of the statement of Kanhaiyalal, dated 8/10/1975, is as under: *** ;