SHIV KUMAR SHARMA, J. - (1.) MEDDLING with the water course followed by a wrangle resulted in death of Net Ram. The appellants Jai Singh and Brahmanand along with their brothers Chet Ram and father Harphool were indicated for having committed murder of Net Ram before the learned Additional Sessions Judge No. 3 Alwar who vide judgment dated January 20, 1998 did not find the charges proved against Harphool and Chet Ram and acquitted them. However appellants Jai Singh and Brahmanand were found guilty, convicted and sentenced as under: 1. Brahmanand : Under Section 302 IPc to suffer imprisonment for life and fine of Rs. 1000/- in default further suffer six months S. I. 2. Jai Singh : Under Section 302/34 IPc to suffer imprisonment for life and fine of Rs. 1000/- in default further suffer six months S. I.
(2.) THE prosecution case giving rise to this appeal in nutshell is that the informant Ram Kishore (PW. 3) submitted written report (Ex. P. 5) to the SHO Police Station Malakhera on December 27, 1996 with the averments that around 8. 00 a. m. on the said day while Net Ram was watering his field, Brahmanand, Jai Singh, Chet Ram, and Harphool armed with spade, farsi and tabbal (sharp edged weapon) came over there and assaulted Netram. Brahmanand inflicted spade blow on his head, Jai Singh gave farsi blow on his foot and Chet Ram caused injuries by tabbal (a sharp edged weapon) on his hand and Harphool gave tabbal blow on his thigh. When Jagdish made attempt to intervene Brahmanand inflicted spade blow on his head and Jai Singh caused injuries on his finger. Jai Singh also gave farsi blow on the finger of Amar Chand. After finding Netram dead the accused fled away. THE Police Station Malakhera registered a case under Sections 323, 341, 447 and 307 IPC and investigation commenced. After the death of Netram the case was converted into one under section 302 IPC. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions No. 3. Alwar. Charges under sections 302, 302/34, 447, 323, and 341 IPC were framed against the appellants, who denied the charges and claimed trial. THE prosecution in support of its case examined as many as 20 witnesses. In the explanation under section 313 Cr. P. C. the appellants claimed innocence. Four witnesses were examined in defence. On hearing final submissions the learned trial judge convicted and sentenced the appellants as indicated above. Mr. S. R. Bajwa, learned senior counsel although raised various contention to shatter the prosecution case but the main plank of his submission was that the deceased Net Ram deliberately committed mischief by meddling with the water course which was utilized by the appellants at the relevant time as per the condition agreed in the partition. The appellants when made protest, they were assaulted by the complainant party, therefore in exercise of right of private defence, if some blows with spade might have dealt with resulted in death of Net Ram, no offence was committed by the appellants in view of Sections 100 and 103 IPC. On the other hand Mr. S. S. Rathore, learned Public Prosecutor and Mr. S. S. Sunda, learned counsel for the complainant supported the impugned judgment and urged that the threat to the person or property of the appellants was neither real nor immediate thus there was no occasion to exercise the right of private defence. In fact the act of the appellants is covered under clause thirdly of Section 300 IPC and they have been rightly convicted. We have pondered over the rival submissions and carefully scanned the material on record. The prosecution case mainly rests on the testimony of Jagdish (PW. 1), Ram Kishore (PW. 3), and Amar Chand (PW. 8), who are the eye witnesses of the occurrence.
(3.) DR. Raj Kumar (PW. 20) conducted autopsy on the dead body of Net Ram vide Ex. P-31 and found three antimortem injuries on his person thus:- (i) Incised wound: 1" x 1/4" x bone deep on left parietal region. (ii) Incised wound: 2, 1/2" x 1" x bone deep on right knee. (iii) Incised wound: 1" x 1/6" on right leg. The death was caused due to fracture of skull bone, haemorrhage and shock. Amarchand sustained as many as 5 injuries vide Ex. P. 14 whereas Jagdish sustained one abrasion vide Ex. P-32. Let us now scan the credibility of prosecution witnesses. Before adverting to the testimony of Jagdish (PW. 1) it is to be noticed that Harphool and Inder were real brothers. The partition of their ancestral agricultural land had already been taken place and in regard to common well it was decided that water course shall be utilized by them turn by turn Jagdish (PW. 1) is the son of Inder and real brother of deceased Net Ram. In his deposition Jagdish stated that after the turn of Jai Singh to water the field from the common well was over, Net Ram on December 27, 1996 at about 8 AM, went to the well for diverting the water course towards his field. Jai Singh, Brahmanand, Chet Ram and Harphool prevented him and Jai Singh inflicted pharsi blow on the foot of Net Ram while Brahmanand gave a blow with spade on his head. When Amar Chand made attempt to intervene, Brahmanand caused injury on his person also. In his cross examination Jagdish deposed that turn of each party to use the water course used to commenced in the evening and continued till next evening. He further stated that he did not see any blood on the head of Brahmanand. ;