SURENDRA NATH BHARGAVA, J. - (1.) THIS is a criminal appeal against the judgment of Additional Sessions Judge, Gangapur City, convicting and sentencing the accused appellants as under: (1) Fatya alias Fatehlal: Under Section 302, IPC - Imprisonment for life and a fine of Rs. 500/ -, in default of payment of fine. 6 months SI; Under Section 302/34, IPC - Imprisonment for life and a fine of Rs. 500/ -, in default, 6 months SI .Other villagers took Prasadi and Mangilal to the Hospital but both of them died in the hospital.
(2.) ON the aforesaid report, a case under Section 302, IPC was registered by the police. After usual investigation, the case was challaned against eight accused persons in the court of Magistrate, who committed the accused to the court of Sessions. Learned Additional Sessions Judge, Gangapur City, after recording evidence led by the parties, while convicted and sentenced four accused appellants and acquitted the rest four accused persons namely, Heera Lal, Ramjilal. Basanti and Munni. Hence, this appeal. Learned Counsel for the appellants has submitted that the accused appellants are entitled to right of private defence and the prosecution has failed to bring home guilt of the accused persons. He has further submitted that same set of evidence has been disbelieved by the learned trial court while acquitting the four co -accused persons. He has placed reliance on the evidence of those very witnesses while convicting the accused appellants. He has further submitted that the defence of the accused persons that it was the complainant party which came to the house of accused appellant Fateh Lal and inflicted injuries on Sukko, and Fateh Lal and Fateh Lal snatched the knife and inflicted injury on Prasadi and Mangilal in the scuffle, is more probable and therefore the accused appellants are entitled to acquittal. He has drawn our attention to Ex D 10 FIR which has been registered at 11.45 p.m. on the basis of Parcha Bayan of Smt. Sukh Bai in the Hospital. Ramesh Chand (PW 21), the Investigating Officer has admitted in his cross -examination that he had received information from the hospital about the injuries received by Fatehlal and Smt. Sukh Bai before the report Ex. P 8 was received from Smt. Dharmo on the basis of which FIR Ex. P 35 was registered at 9.45 p.m. and he had sent the Constable to the Hospital who had recorded the Parcha Bayan of Smt. Sukh Bai on the basis of which Ex. D 10 was recorded at 11.45 p.m. He has further submitted that Fateh Lal had received five incised wounds by sharp edged weapon, five bruises and one lacerated wound on the right parietal region which proved to be fracture of the skull bone, whereas Smt. Sukhbai wife of Fateh Lal had also received three incised wounds by sharp edged weapon and four bruises by blunt weapon and that they were examined at 9 p m. He has further submitted that blood smeared soil was collected from outside the house of the accused appellants, vide Ex. P 12 and in the site plan (Ex. P 9) also, blood has been shown on the Chabutara of the accused Fateh Lal He has further submitted that the accused appellants Fatehlal, Sukh Bai had to remain at the hospital for nearly 20 days upto 12 -5 -1983. He has further submitted that the Investigating Officer could not find out as to how the quarrel took place between the parties and who was the aggressor, though in re examination he has stated that the accused received injuries after the incident of killing Prasadi and Mangilal was over and the accused were given beating by the neighbourers and other relatives of the deceased. He has further submitted that the prosecution has failed to explain the injuries on the accused persons There is enough evidence that there was serious enmity between the accused party and he complainant party, and the complainant party had given beating to the accused persons on earlier occasion also and even on the date of incident, there was a case fixed in the court and while returning from the court, the complainant party had threatened the accused of serious consequences.
(3.) OUT of the eight accused persons who were challaned in the court, only 2 have received injuries who were old whereas other six accused persons who were young including ladies have not received any injury. The prosecution case is only a defence to the complaint made by Smt. Sukho and the prosecution has not come with clean hands. Genesis of the quarrel has not been brought no record and the FIR Ex. P. 35 which is alleged to have been registered at 9.45 p m. was submitted only after 12 O'clock, as has been stated by scribe of the written report Ex. P.8 Sohan Lal PW 11.;