SHARMA, J. - (1.) RAM Ratan (deceased) was the husband of Dropadi Bai (P. W. 8 ). As per the prosecution story Tara Chand and his two sons viz. Mohan Lal and Kalyan (appellants herein) committed murder of RAM Ratan and inflicted injuries on the person of Dropadi Bai but according to defence version Dropadi Bai had illicit relations with Chhitar Lal (P. W. 7) and while they were making love, RAM Ratan suddenly appeared and gave blows with Ballam (spear) to Dropadi Bai. Chhitar Lal then inflicted injuries on the person of RAM Ratan and killed him. Since the appellants had seen the incident they were implicated falsely and put to trial before learned Additional Sessions Judge (Fast Track) No. 2 Baran Head Quarter Chhabra, who vide judgment dated November 20, 2003, convicted and sentenced them as under:- U/s. 302/34 IPC: Each to undergo imprisonment for life and fine of Rs. 1000/- in default to further suffer two months simple imprisonment. U/s. 323/34 IPC: Each to undergo one year rigorous imprisonment and fine of Rs. 500/- in default to further suffer one month simple imprisonment. U/s. 324/34 IPC: Each to undergo three years rigorous imprisonment and fine of Rs. 500/- in default to further suffer one month simple imprisonment. The substantive sentences were ordered to run concurrently.
(2.) ON September 25, 2001 informant Dropadi Bai (P. W. 8) submitted a written report (Ex. P-14) at Police Station Chhipa Barod to the effect that their field situated on the path way of Bawri of Bammori Ghata near the field of Tara Chand, who used to quarrel with them for the use of pathway. ON the said day around 7 PM while the informant and her husband Ram Ratan were on their field and digging peanuts and Chhitar Lal was grazing goats nearby. Tara Chand, Kalyan and Mohan came over there. Tara Chand had axe, Kalyan had Khalla (lakri) and Mohan had Khuntia. They made assault on Ram Ratan. Kalyan inflicted blow with Khalla on his head as result of which he fell down, thereafter all started inflicting blows on his person. When she tried to save him Kalyan gave khalla-blow on her left hand, Mohan gave blow on her left shoulder. Blows were given by the assailants on her legs and back. Ratan was removed to hospital, where he was declared dead. ON that report case under Sections 302 and 323/34 IPC was registered and investigation commenced. Statements of witnesses under Section 161 Crpc were recorded accused were arrested necessary memos were drawn and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No. 2 Baran Head Quarter Chhabra. Charges under Sections 302, 323 and 324/34 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Sec. 313 Cr. P. C. , the accused claimed innocence. ONe witnesses in support of defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard learned counsel for the appellants and learned Public Prosecutor and with their assistance scanned the material on record. As per Post Mortem Report (Ex. P-15) following ante mortem injuries were found on the dead body:- 1. Incised wound 21/2" x 1/2" x 2" upto brain matters margins clean cut well defined Rt. parietal region 2" after Rt. ear 2. Incised wound 11/2" x 1/2 x bony deep on Rt. parietal region just 1/2" medial to injury No. 1. 3. Lacerated wound 21/2" x 1/2" x bony deep forehead frontal region is on Rt. side 1cm medial to injury No. 2. 4. Incised wound 11/2" x 1/4" x 1/4" on Rt. eyebrow on forehead red margins clean cut well defined. Line of Rt. eye brow. 5. Incised wound Red 11/2" x 1/4" x 1/4" -- x 1/2" Rt. eye brow. 6. Abrasion Rt. side lower 1/3rd 3" lateral to M/l 7. Bones and joint depression of Rt. frontal Rt. parietal bone. & Rt. temporal region of frontal & parietal bone. In the opinion of Dr. Ramesh Chand Meena (P. W. 16) the cause of death was coma due to head injury. Dropadi Bai (P. W. 8) vide injury report (Ex. P-16) received following injuries:- 1. Incised wound 1" x 1/4" x 1/4" Rt. shoulder joint scapulla post. 2. Extensive swelling oval Left forearm after left wrist joint. 3. Swelling with tenderness oval Rt. thigh. 4.Swelling with tenderness oval left thigh. Coming to the prosecution evidence we notice that Dropadi Bai (P. W. 8) in her deposition stated that on the day of incident around around 10 AM she had gone to the well at Bambori Ghata, taking food for her husband Ramratan, who was digging peanuts. She and Ram Ratan workd in the field. At about 6 PM Ram Ratan told her to proceed to the house. When they started for their house, they found Kalyan, Mohan and Tarachand hiding in the maiz field of Kalu Lal. All the three armed with axe, Kuntia and Khalla belaboured Ram Ratan and inflicted injuries on the forehead, head and back of Ram Ratan. When she intervened Tara Chand gave axe blow on her back and Kalyan inflicted blow with Khalla on her hand. Chhitar Lal also arrived there, who raised alarm and the assailants fled away. Meanwhile Radhey shyam reached there with whose help she removed her husband to hospital where he was declared dead. In her cross examination she denied to have illicit relations with Chhitar Lal. Despite lengthy cross examination her testimony could not be shattered.
(3.) CHHITAR Lal (P. W. 7) deposed that around 7 PM while he left the field for the home he saw Tara Chand, Kalyan, Mohan and Ram Ratan quarreling. Tara Chand gave axe blow on the head of Ram Ratan, Mohan inflicted blow with Khalla whereas Kalyan caused injuries with Kuntia on the person of Ram Ratan. Dropadi Bai wife of Ram Ratan was also given beating by the assailants. He (CHHITAR Lal) put bandage with Safi on the head of Ram Ratan. He then called Radhey Shyam and Ram Ratan was removed to the Hospital in the Tractor of Ram Narain Mali. Where Ram Ratan was declared dead. In the cross examination suggestion was given to CHHITAR Lal that on the date of incident Ram Ratan had seen Dropadi and CHHITAR Lal in the illicit state therefore CHHITAR Lal inflicted injuries with Ballam (spear) on the person of Ram Ratan. CHHITAR Lal denied this suggestion. Ganga Bai (Dw. 1) was examined by the appellants in support of their defence. She only deposed that she had seen Ram Ratan, Dropadi and Chhitar Lal quarreling. Mr. Biri Singh, learned counsel for the appellants instead of toeing the line of defence raised on behalf of the appellants at the trial, made altogether new submission. According to learned counsel at the time of incident Ram Ratan had Ballam and his conduct was sufficient to give rise to a reasonable apprehension in the mind of the appellants that Ram Ratan would kill them had they not exercised the right of private defence. The use of axe, kuntia and khalla by the appellants was justified. In a situation like this it was not possible for an average person whose mental excitement could be better imagined and described, to weigh the position in golden scales. According to learned counsel, since the appellants had exceed the right of private defence, they could not be held guilty under Section 302/34 IPC. ;