SHYAM SUNDER BYAS,J. - (1.) BY his judgment dated March 27, 1982, the learned Additional Sessions Judge, Raisinghnagar convicted the accused Surjeetsingh under Section 302, I.P.C. and the remaining three accused Mehatab Singh, Mangalsingh and Ratansingh under Section 302/34, I.P.C. and sentenced each of them to imprisonment for life with a fine of Rs. 100/ - in default of the payment of fine to further undergo one month's rigorous imprisonment. By the same judgment, he further convicted them under Section 447, I.P.C. and sentenced each of them to three months' rigorous imprisonment. Substantive sentences were directed to run concurrently. The accused have come -up in appeal and challenge their conviction.
(2.) BRIEFLY stated, the prosecution case is that Pyarasing, aged about 45 years, and his wife Smt. Hardeo Kaur, aged about 35 years, were living with their son Keharsingh (PW 1) and daughter Ku. Kaushaliya (PW 5) in the Dhani they had raised in their Muraba No. 116/322 situate to Rohi Mauja Vishanpura P.S Muklawa district Ganganagar Pyarasingh had sown Gawar in some portion of kila No. 17 of this Muraba some where in June, 1980. The plants of Gawar had come -out of the soil. At about 5.00 p.m. on July 26, 1980, Pyarasingh was working in Kila No. 17. The four accused Surjeetsingh, Mehtabsingh, Mangalsingh and Bantasingh came there in Kila No. 17 and started up -rooting the Gawar plants by ploughing the field. Pyarasingh implored them not to do so, but with no success. They made an assault on Pyarasingh. Pyarasingh raised cries, hearing which his wife Smt. Hardeo Kaur, his son Keharsingh and his daughter Kumari Kaushaliya, who were in their Dhani, rushed to the spot. Accused Surjeetsingh had an axe, Mehtab Singh had a Lathi and Mangalsingh and Bantasingh had Kassi. Accused Surjeet singh struck a blow of his axe on the head and the other on the face of Pyarasingh. Pyarasingh fell down and became unconscious. Thereafter accused Mangal Singh. Banta Singh and Mehtab Singh struck blows to him with their weapons. Hardeo Kaur tried to rescue her husband, but she too was not spared. Accused Surjeet Singh struck a blow of his axe on the head of Smt. Hardeo Kaur She also fell down and became unconscious. The other accused, after she fell down, struck blows to her with their weapons. Kehar Singh (PW 1) and Kumari Kaushaliya (PW 5) raised alarm. The accused told that they should also be finished. Kehar Singh and Kumari Kaushaliya, apprehending risk to their life, rushed towards the Dhani of their uncle Mehtab Singh situate nearby. They reached there and narrated the incident to their aunt Smt. Veero (PW 2). She confined them in a Kotha for their safety The accused lifted Pyara Singh and Smt. Hardeo Kaur and put them in Kila No. 24 of the Muraba. They then sped away towards their Dhani. Smt. Veero (PW 2), Kehar Singh (PW 1) and Kumari Kaushaliya (PW 5) went to Kila No. 24 and found Pyara Singh and Smt. Hardeo Kaur dead. Kehar Singh (PW 1) went to Gurudwara Buddha Jor to inform his grand -father Jaimal Singh (PW 4), who had gone there to offer prayers. He found Jaimal Singh near the Gurudwara and narrated the incident to him. Both of them came to Kila No. 24. Jaimal Singh remained with the dead bodies. Kehar Singh (PW 1) then went to village Usman Khera to bring his father's sister. Jaimal Singh remained with the deed bodies through out the night Next day, he went on foot to the Police Station, Muklawa and presented written report Ex P.3 at about 12.00 Hours. The police registered a case and proceeded with investigation. The Station House Officer Mohan Lal (PW 8) arrived on the spot, inspected the site and prepared the site plan and the inquests of the dead bodies, He also found blood scattered around in Kila Nos. 17 and 24. He lifted the blood -stained soil and sealed it. The postmortem examination of the dead bodies was conducted at about 10.30 a.m. on July 28, 1980 by PW 3 Dr. S.M. Sharma, the then Medical Officer In -charge, Primary Health Centre, Raisinghnagar. The doctor noticed the following ante -mortem injuries on the victim's dead bodies: On the person of Pyara Singh: External: (1) Abrasions two in number 4 cm. over the right thigh middle 1/2 antro -laterally; (2) Abrasion 5 cm. over the right thigh antro -lower 1/8; (3) Incised wound 11x6 cm. x 3 cm. maxillary process right side to chin. Fracture of mandible and maxillary process right side; (4) Incised wound 11 x 7 c.m. x brain deep wound extended from the medial angle of right eye to frontal part of scalp; (5) Right eye was lying out side its sockets. Internal - (1) Fracture of right frontal bone in small pieces; (2) Fracture of maxillary bone in small pieces; (3) Fracture of mandible; (4) Laceration of frontal part of brain along with its membrance right side. On the person of Smt. Hardeo Kaur: External - (1) Incised wound 13 x 3 cm. x brain deep left fronto -parietal region of scalp maggots emitting out from the wounds. Internal - (1) Fracture of frontal and parietal bones of scalp left side. Bona fractured in small pieces; (2) Rupture underneath fracture along with parietal and frontal part of brain side. The cause of death of Pyara Singh, according to Dr. Sharma was injury to vital organs i.e. right frontal lobe of brain and multiple fractures of frontal bone, maxillary bone and mandible. The cause of death of Smt. Hardeo Kaur, according to Sharma, was injury to vital organ i.e. brain, frontal and parietal lobe of left side. The post -mortem examination reports prepared by the doctor are Ex. P 1 and Ex. P 2. The blood -stained clothes of the victims were seized and sealed. In consequence of the disclosure statement made by the accused persons; axe, Lathis and Kassis were recovered. Human blood was found on some of these articles. On the completion of investigation, the police filed a crime report against the appellants in the Court of Munsif Judicial Magistrate, Raisinghnagar, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302 and 447, I.P.C. against accused Surjeet Singh and under Sections 302/34 and 447, I.P.C. against accused Mangal Singh, Mehtab Singh and Banta Singh, to which they pleaded not guilty and claimed to be tried. Accused Mehtab Singh, Mangal Singh and Banta Singh denied their presence on the spot and stated that they have been falsely implicated. Accused Surjeet Singh, while admitting his presence on the spot, came out with a counter version. In his statement under Section 313 Cr. P.C. accused Surjeet Singh stated that the deceased Pyara Singh had mortgaged Kila No. 24 of Muraba No. 116/322 to him for a sum of Rs. 900/ - and executed mortgage deed Ex. P 3 in his favour on May 1, 1980. The deceased also delivered the possession of Kila No. 24 to him on the same day and since then this field was in his possession. On the day of the incident, he went to Kila No. 24 with a camel to plough it. When he reached there, the deceased Pyara Singh asked him not to plough the field. He replied that as the field was mortgaged to him, he had come to plough it. Pyara Singh thereupon struck a blow of an axe to him while he was on the camel's back. He fell down. He lifted a Kassi and struck blows with it to Pyara Singh to ward off further aggression, Smt. Hardeo Kaur struck a blow of Lathi to him. In order to protect himself from being further beaten, he struck a blow of his Kassi to Smt. Hardeo Kaur. It was further stated by him that in case he had not struck blows to Pyara Singh and Smt. Hardeo Kaur, he would have been killed by them. He, thus, put forward a right of private defence of person and property. In support of its case the prosecution examined eight witnesses and filed some documents. In defence, the accused examined two witnesses. On the conclusion of the trial, the learned Sessions Judge found no truth or substance in the defence version. He accepted and treated PW 1 Kehar Singh and PW 5 Kumari Kaushaliya as witnesses of truth. Accepting their testimony as true, he held the charges duly proved against the appellants. The appellants were consequently convicted and sentenced as mentioned at the very out -set. Aggrieved against their convictions, the accused have taken this appeal.
(3.) WE have heard Mr. H.N. Calla, learned Counsel for the appellants and the learned Public Prosecutor. We have also gone through the record of the case.;