Mathur, J. - (1.) THESE two appeals arises out of the same occurrence alleged to have taken place in the were hours of 12. 11. 99 in the field known as Jod Wala Khet on the outskirt of Village Rohisa in which two persons Mohan Singh and Jeewan Singh died and persons from both the factions sustained fire arm injuries. In D. B. Cr. Appeal No. 896/2004 the appellants Brij Lal and Sahib Singh have been convicted of offence under Section 302/34 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 5000/-; in default of payment to further undergo six months simple imprisonment and cognate offences by the judgment of the Special Judge SC/st (Prevention of Atrocities) Act Cases, Merta dated 28. 08. 2004 in F. I. R. Case No. 137/99, Police Station, Thanwala. In D. B. Cr. Appeal No. 185/2005 on the same date the same trial Judge acquitted the accused respondents of offence under Section 302/34 IPC and allied offences. The State has preferred the appeal against the judgment of acquittal.
(2.) BRIEFLY stated the prosecution case is that on 12. 11. 99 at about 2. 30 P. M. , PW. 4 Manvendra Singh submitted a written report Ex. P. 6 before the S. H. O. , Police Station, Thanwla at Government Hospital Rinya Badi stating inter alia that on the same day at about 12 Noon his deceased father Mohan Singh along with deceased Jeewan Singh, PW. 5 Gajpal Singh, PW. 22 Kishan Singh, PW. 1 Choth Nath and others went to see their field in a Jeep. The Jeep was being driven by his deceased father Mohan Singh. After about 30 Minutes it was reported by PW. 22 Kishan Singh and PW. 1 Choth Nath that appellants Brij Lal and Sahib Singh and absconding accused Ram Kunwar and two others obstructed their way and assaulted them. Ram Kunwar fired the gun on Mohan Singh. Sahib Singh fired on Jeewan Singh. As a result of gun shots both of them died on the spot. Brij Lal fired on Gajpal Singh causing fire arm injury. He along with 4-5 others rushed to the spot. The dead bodies of Mohan Singh and Jeewan Singh were sent to the Hospital, where they were declared dead. On this information police registered a case for offence under Sections 147, 148, 149, 323, 307, 302 and under Section 3/25 of the Arms Act. The police proceeded with investigation. The police inspected the site and prepared the site inspection memos Ex. P. 7 & Ex. P. 8. The appellants were arrested and the recoveries were made. After completion of the investigation, police laid charge-sheet against the appellants Brij Lal and his son Sahib Singh for offence under Sections 302, 307, 323, 324/34 IPC and Section 30 of the Indian Arms Act. An incomplete charge-sheet was submitted against the absconding accused Ram Kunwar under Section 299 read with Section 173 (8) Cr. P. C. The appellants denied the charges levelled against them and claimed trial. The prosecution adduced oral and documentary evidence to prove its case. The appellants in their statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them. They pleaded innocence and stand that 25-30 persons in jeeps and tractors entered in their field with a view to take possession forcibly. They destroyed the crop and opened fire the gun. The appellants received gun shot injuries. In the same incident Jeewan Singh and Mohan Singh also sustained injuries and died at the hands of the complainant party. The appellant Sahib Singh examined himself as D. W. 1 and Dr. Akhil Gupta as D. W. 2 On consideration of the evidence on record the trial Court found the prosecution case proved and as such convicted and sentenced the appellants in the manner stated above. It would be convenient to briefly summarize the findings of the trial Court as follows:- (1) The land dispute was the root cause of hostility between two factions i. e. Prosecution and appellants. (2) All the prosecution witnesses of occurrence produced by the prosecution namely PW. 1 Choth Nath, PW. 5 Gajpal Singh, PW. 7 Raju @ Rajendra Prasad, PW. 13 Dhukal Ram and PW. 22 Kishan Singh are the interested and partisan witnesses and as such their evidence is required to be scrutinized with care. (3) The appellants were in cultivatory possession of the land in dispute. (4) The prosecution succeeded in establishing beyond doubt that appellant Sahib Singh fired the gun causing death of Jeewan Singh. Brij Lal shared the common intention in causing murder of Mohan Singh and Jeewan Singh and further causing injuries to prosecution witnesses namely Gajpal Singh, Vinod Singh, Kishan Singh and Raju alias Rajendra. (5) The injuries sustained by the appellants were superficial and as such its non-explanation is of no consequence. (6) the appellants have failed to give even a probable account of the occurrence as to how Mohan Singh and Jeewan Singh died on the spot. The simple explanation to the effect that to protect their life they opened fire in Air is not sufficient. (7) The appellants have failed to probablise their plea of right of private defence of person and property. At this stage, it would be convenient to state the facts of the State Appeal in cross case. On 13. 11. 99 at about 1. 30 P. M. , S. H. O. , Police Station, Merta Shri Jahagir Khan recorded statement of the injured Sahib Singh in the Government Hospital, Merta City. He stated inter alia that he owns a land in the joint ownership of his brother in Village Rohisa. In addition both the brothers had purchased 64 bighas of land in March, 1999 from Smt. Naresh Kanwar. They were in cultivatory possession of the said land. Their Rohida crop was standing in the half of the field. On the date of incident, they were ploughing the rest of the field. His father Brij Lal, his wife P. W. 5 Rajbala, PW. 4 Smt. Krishna W/o Ram Kumar, PW. 6 Miss Raju D/o Ram Kumar and son Sunil Kumar were ploughing the crop in the field. At about 12-1 Noon deceased Mohan Singh, deceased Jeewan Singh, Devraj Singh, Gajpal Singh, Kishan Singh, Manvendra Singh, Chotha Ram, Asha Ram, Jagdish, Bhanwaroo, Pushpendra Singh, Dariyav Singh, Dhukal Ram and 5-7 others with the common intention arrived in 3 jeeps and tractors equipped with weapons with a view to get possession over the field illegally. Seeing them his father ran towards the hut. Manvendra Singh fired on them causing injuries on his left leg. Thereafter, Kishan Singh fired on him causing fire arm injury on the back. Pushpendra Singh also fired causing fire arm injuries on the head and hands. His father was having a 12 Bore Gun. He fired 1 or 2 shots in air, then he tried to run away but he was surrounded by the accused persons. Gun shots were fired at him causing fire arm injuries. The accused persons tried to hit his father by jeep. His father Brij Lal again fired. Thereafter they ran away. On this information, police registered a case under Sections 147, 148, 149, 447, 427, 307 & 323 IPC and Section 3/25 of the Arms Act. After usual investigation police filed a charge- sheet against the accused respondents Gajpal Singh, Choth Nath, Dhukal Ram, Vinod Singh and Kishan Singh. They are witnesses of the occurrence in the main case as PW. 5, PW. 1, PW. 13, PW. 16 & PW. 22 respectively. In addition charge-sheet has also been filed against Asha Ram, Jagdish and Bhanwar Singh. In the said case Kishan Singh appeared as defence witness D. W. 1. He gave details of the cross case. The trial Court found that there was delay in filing the F. I. R. The trial Court has held that the prosecution has failed to establish as to how Mohan Singh and Jeewan Singh died and other accused persons sustained injuries. In view of the non-explanation of the cause of death, the trial Court disbelieved the entire case. Accordingly, acquitted the accused respondents by the impugned order. It is contended by Mr. Jagmal Singh Choudhary learned counsel for the accused appellants that it is not safe to place implicit reliance on the prosecution witnesses of the occurrence as they are highly interested and partisan. They have entered into falsehood to the extent that it has become almost impossible to extract the truth from their statements. They have suppressed the origin of the occurrence, which is evident from the fact that injuries on the accused persons have not been explained leading to the inference that occurrence did not take place in the manner alleged. It is further submitted that the plea of self defence of person and property taken by the appellants is more probable in the facts and circumstances of the case. On the other hand, it is submitted by the learned Public Prosecutor that the occurrence had taken place in the we hour in which lives of two persons were taken in quick succession, which suggests that the incident must have taken place only in the manner as narrated by the witnesses of the occurrence. It finds corroboration from the medical evidence and other incriminating circumstances. Thus, merely because the witnesses are interested, their evidence cannot be rejected. The conclusion drawn by the trial Court on proper appreciation of evidence does not call for interference. It is further submitted that there is no evidence worth the name that the deceased persons were armed with deadly weapons. Thus, the appellants had no right of private defence either of property or person in the facts of the case.
(3.) BEFORE we proceed to analyse the prosecution evidence and consider the rival contentions, it would be convenient to refer to the medical evidence, which is common in both the cases. PW. 29 Dr. Tikam Chand Badjatya stated that he was one of the member of the Medical Board, which conducted the autopsy on the dead body of Mohan Singh vide Ex. P. 53. The Medical Board noticed the following injuries on his person: (1) Fire arm wound Thorax - Wound of entrance - 2. 5'' x 2'' in size, oval in shape, deep upto the thoracic cavity, on the left chest wall about 3'' Infero medial to left nipple. Skin edges encircling the wound are charred and blackish in the form of 0. 3'' rim. Wound of Exit- Nil. Entrance wound in the muscular and bony wall of the thorax is more in dimensions having 4'' x 3'' dimensions underneath and in continuity with the skin aperture. These are fractures of the ribs in this injury. (2) Heart and pericardium is badly torn and lacerated. Right lung & pleura - A thorough & thorough wound in the lower lob about 1'' in dimension, circular. (3) Fractures - 5th left rib is dislocated at the costochondral junction. 6th left rib fractured in 3 small fragments underneath the wound. A greyish white plastic cork and a metalic deformed piece (planoconvex in shape 2. 5 cm x 1 cm) recovered from the thoracic cavity. In the opinion of the Medical Board the cause of death of deceased Mohan Singh was haemorrhagic shock as a result of injuries to heart and lungs. The Medical Board conducted autopsy on the dead body of Jeewan Singh vide Ex. P. 54. The Board noticed following injuries on his person:- (1) Fire-arm wound Thorax- Wound of entrance - 2. 00'' x 1. 5'' in size, oval in shape, deep upto the thoracic cavity, on the right chest wall, just below the right sterno-clavicular joint. Skin edges encircling the wound are charred, blackish and shrunken in the form of 0. 4'' rim. Wound of Exit - Nil. Entrance wound in the muscular and bony wall of the thorax is more in dimension having 2. 5'' x 2'' oval dimensions underneath and in continuity with the skin aperture. There are fractures of manubrium sterni & right rib in this injury. (2) Medial aspects of upper lobes of both the lungs & pleurae lacerated and torn. (3) Fractures- upper part (manubrium) of the sternum is fractured to pieces in its right lateral half. First right rib fractured about 1'' from its attachment with the sternum. A deformed metallic piece of bullet (irregular in shape 1'' x 0. 5'' in size) recovered from the thoracic cavity. In the opinion of Medical Board the cause of death of deceased Jeewan Singh was haemorrhagic shock as a result of injury to the lungs. Pw. 26 Dr. Nand Lal stated that he prepared the Medico Legal Injury Report of Pw. 5 Gajpal Singh vide Ex. P. 50. He noticed the following injuries on his person: (1) Swelling over eye lid with c/o less of vision, working in redness. (2) multiple punctured wound approximately six in number measuring from 1/2 x 1/2 cm to 3/4 x 1/2 cm cots contused & irregular margins. (3) Multiple punctured wound approximately seven in number scattered on right side & left side of chest upper 1/2 measuring from 1/2 x 1/2 cm to 3/4 cm 1-1/2 cm in size, margin contused and irregular. Noticing the Injury No. 1 on the eye the case was referred to the ophthalmologist. All the injuries were simple in nature caused by fire arm. In the cross examination, he admitted that he had not taken out any pellet from the body of Gajpal Singh. ;