MILAP CHAND JAIN, J. - (1.) THREE accused persons namely, Kapoorsingh, Dalelsingh s/o Laxmansingh and Sukhsingh s/o Dalelsingh were tried for the offences Under Section 302, 302/34, 307/34, IPC by the learned Sessions Judge, Sri Ganganagar, who by his judgment of June 9, 1975 acquitted the accused appellant Sukhsingh of all the charges. He, however, convicted the other accused -appellants namely Kapoor Singh and Dalelsingh for the offences Under Section 303/34 IPC and sentenced each of them to imprisonment for life. They were acquitted of the offences under Section 307 and 307/34, IPC. The accused Dalel Singh was further convicted for the offence under Section 325, IPC and was sentenced to rigorous imprisonment for two years and to pay a fine of Rs. 300/ -, in default of payment of fine to further undergo one month's rigorous imprisonment. Dalel Singh's substantive sentences were ordered to run concurrently.
(2.) THE prosecution case in brief is that the deceased Harnam Singh and Gurnam Singh were the real brothers. One Balwant Singh had sold Killas from 1 to 20 of Square No. 129 situated in village 24 BB to Raj Singh son of Harnam Singh and Bain Singh s/o Gurnam Singh having an half and half share for a sum of Rs. 8,000/ - on 2 -8 -1963. All the twenty Killas were cultivated by Harnam Singh and his sons, since the date of purchase, as Harnam Singh's share of the land situated in Punjab, was cultivated by Gurnam Singh. It is alleged that the complainant party had sown the crop of Taramira in its land and they were harvesting Taramira. It is alleged that Raj Singh (16) s/o Harnam Singh (PW 7) and his maternal uncle's son Amarjit Singh (PW 11) had gone to harvest Taramira crop in the morning of 8 -4 -1974. At about 4.45 p.m., Harnam Singh and his son Teja Singh (13) the younger brother of Raj Singh had come to their land with a cart in order to remove the crop, which has already been cut, 15 -20 minutes after the arrival of Harnam Singh, as per the version given in the FIR (Ex. P/3) lodged by Raj Singh at 5.45 p.m. at the police station, Padampur, Dalel Singh, Kapoor Singh, Sukha Singh, Laxman Singh, Gela Singh and Benta Singh came in a cart and after getting down from the cart, ran towards Harnam Singh. Kappor Singh Gela Singh and Sukha Singh were armed with Selas, Dalel Singh with gandhali, Banta Singh with Kassia and Laxman Singh with Soti. Soon thereafter they started beating Harnam Singh. Being frightened, he ran and narrated the occurrence to Bagdawat and Ganpat Bishnoi. Thereupon, both of them accompanied to the spot and rescued his father from Dalel Singh and others. Dalel Singh and others also inflicted blows on Amarjit Singh. He observed that his father has sustained injuries on the head and abdomen, which were bleeding. Amarjit Singh had also sustained an injury on his hand, which was also bleeding. Both of them were removed to the hospital. On this report, PW 12 Jala Singh registered the case under Sections 307, 147, 149, 447 IPC. The SHO Jala Singh went to the hospital, Padampur and recorded the statement (Ex. P/26) of Harnam Singh under Section 161, Cr.PC. Upon the advice of the doctor, both Harnam Singh and Amarjit Singh were sent to the hospital at Ganganagar. PW 6 Dr. Ram Lal Goyal, on receipt of the police requisitions Ex. P/11 and Ex. P/12, on 8 -4 -1974 at 9.00 p.m. went to the hospital and examined the injuries of Harnam Singh (55) at 9.05 p.m. He found the following injuries on the person of Harnam Singh: (1) Punctured wound vertical in direction 3/4' x 1/4' x depth on the left side of abdomen; (2) Punctured wound vertical in direction 1' x 1/4' x depth (?) on the lateral aspect of left kidney area on the front of abdomen ; (3) Punctured wound 1/4' x 1/8' x 1/2' on the front of right thigh; (4) Punctured wound 2' x 1/4' x depth (?) on the left side of bladder area; (5) Punctured wound 3/4' x 1/2' x (?) just below umbillicut on right side of abdomen; (6) Incised wound 1 -1/2' x 1/4' x 1/2' on the left upper arm on lateral aspect; (7) Incised wound vertical in direction 1' x 1/2' x 1/2' on the medial aspect of left arm on lower region; (8) Lacerated wound vertical in direction 2' x 1/8' x, 1/8' on the left parietal region; (9) Lacerated wound vertical in direction 2' x 1/8' x 1/8' on 1' medial to injury No. 8; (10) Lacerated wound oblique in direction 1' x 1/8' x 1/8' on the half inch medial to injury No. 8. He also examined the injury on the person of Amarjit Singh and found the following injury: (1) Lacerated wound oblique in direction of size 2' x 1/4' x 1/4' on the posterior lateral aspect of right fore -arm at lower third region. The injury was suspected grievous in nature and caused by blunt weapon. The dying declaration of Harnam Singh was further recorded by the Munsif and Judicial Magistrate, First Class, Sri Ganganagar Shri Sukhdarshan Kumar Bansal (PW 13) on 8 -4 -1974 at 10 p.m. and was completed at 10.30 p.m. PW 15 Dr. Nawal Kishore Sharma operated upon Harnam Singh on 9 -4 -1974 and on opening the abdomen, he found these perforations of the illium and the omentum was getting out of the wound. There was a tear in the mesentary. Harnam Singh died on 11 -4 -1974 at 7 p.m. Inspite of operation, he could not be saved and he died due to shock and peritonitie Autopsy on the dead body was conducted by Dr. Ram Lal Goyal on 12 -4 -1974 at 9.30 a.m.
(3.) ON 9 -4 -1974, PW 12 Jala Singh proceeded to the spot and prepared the site plan (Ex. P/4) and site note Ex. P/4A. He seized the bloodstained and sample earth from Killa No. 7 vide memo Ex. P/8. Blood -stained clothes of the deceased and the injured were seized. The accused Sukha Singh was arrested on 12 -4 -1974 and Dalel Singh arrested on 14 -4 -1974. The accused Kapoor Singh was arrested on 15 -4 -1974 in the Ganganagar Hospital by PW 4 Budh Ram. On 16 -4 -1974 the accused Sukh Singh gave a disclosure statement Ex. P/29 in pursuance of which, gandhali Article 4, Jayee Article 3 and barchhi Article 5 were recovered from a heap of Turi in the kotha of Kapoor Singh vide memo Ex. P/2. The S.H.O. also took in his possession certain documents. After completion of the investigation, charge sheet was presented against the accused persons namely; Kapoor Singh, Dalel Singh, and Sukha Singh. Gela Singh and Banta Singh were not challaned. On trial, after discussing the evidence, the learned Sessions Judge observed as under: (1) That the land in question was purchased in the name of Raj Singh son of Harnam Singh and Banta Singh son of Surnam Singh in the year 1963. Harnam Singh and Gurnam Singh were both brothers; (2) Raj Singh or for that matter his father Harnam Singh deceased were in possession of this land from the time it was so purchased. It is only in the year 1972 that Gurnam Singh entered into an Agreement of Sale on 5 -9 -1972 with Dalel Singh in respect of half the land and it is since then the accused are claiming to have got into possession of the land. It is, therefore, clear that before 1973 the accused had nothing to do with this land; (3) The original agreement has not been produced by the accused in any court so far. In this court, they have not even cared to produce even the copy they produced in the Revenue Court. In the absence of that documentary evidence which admittedly exists, it is very difficult to hold that the accused did not ever purchase the land and if they did so which were the Killas, they purchased from Gurnam Singh or for that matter his son Beant Singh; (4) The history of the criminal prosecution revealed by various FIRs and charge -sheets Ex. P/20 to Ex. P/24 goes to show that the complainant party has been vigorously contesting the attempts at possession made by the accused party. Even the police has been challaning the accused for trespass against the lands of Harnam Singh and his son. The best way for the accused was to bring Gurnam Singh in evidence to show whether he was ever in possession of the land in dispute or did he ever agree to sell to the accused but no such attempt was made by them; (5) The evidence of Maghar Singh (PW 1) who has also got 5 bighas in the same square, is of little help of to the accused persons because on account of relationship or otherwise such evidence can always be procured; (6) On the day of occurrence Killa No. 7 was in possession of the complainant party and Taramira was sown and harvested by them. There is nothing to doubt the testimony of Raj Singh, Amarjeet Singh and Bagdawat in this respect. I, therefore, hold that on the day of occurrence, the land was in cultivatory possession of the complainant party. They had sown Taramira and had cut the same. The accused had not sown any crop and their entry into the field was nothing but an act of trespass and aggression.;