K.S.LODHA,J. - (1.) THE learned Counsel for the appellants in this case has only challenged the nature to the offence which the accused appellants have been convicted. He does not dispute the prosecution story but urges that the appellant Sucha Singh could not have been convicted Under Section 302, IPC but should have been convicted Under Section 304, Part -II, PC and two other appellants Ajaib Singh and Bakar Singh could not have been convicted Under Section 302 read with 34, IPC and should have been convicted only Under Section 324, IPC.
(2.) KEEPING this short contention in view, we have heard the learned conusel for the appellants and the learned Public Prosecutor and have gone through the record. Briefly stated the prosecution story is that on 11 -5 -1985 at about 9.30 p.m., the deceased Jogendra Singh a Mazabi Sikh r/o 1, PS has gone to the house of Gurdeep Singh P.W. 3, the First Informant to pay a courtesy call along with Kashmir Singh. He called upon Gurdeep Singh and when Gurdeep Singh came out, the accused persons Sucha Singh, Kala Singh, Ajaib Singh. Mazabis and Bakar Singh, Rai Sikh r/o 2, PS came there, Sucha Singh had a Lathi, Kala Singh had a Gandasi and Ajaib Singh and Bakar Singh had spears. Sucha Singh is alleged to have given a blow on the head of Jogendra Singh, where upon Gurdeep Singh asked Sucha Singh not to beat Jogendra Singh in front of his house. How ever, although Sucha Singh did not repeat any blow, Kala Singh gave a blow on the head of Jogendra Singh with the Gandasi and when Jogendra Singh fell down, Ajaib Singh and Bakar Singh are alleged to have given him pricks with spears Jogendra Singh fell down unconscious. Then Gurdeep Singh along with Kunwar Dalip Singh and master Gurdarshan Singh, who had also reached the spot by that time, rescued Jogendra Singh and the accused persons took to their heals. Later Gurdeep Singh and Kashmir Singh carried the injured and unconscious Jogendra Singh to Padam pur. There the doctor informed the Police Station, Padampur but was Jogendra Singh did not regain consciousness and succumbed to the injuries in the hospital, his statement could not be recorded. The Gurdeep Singh went to Police Station, Ghamudwali and lodged a report vide Ex. P. 1, there at 4 p.m. on 12 -5 -1985 and a case Under Section 302 read with 34, IPC was registered against the four accused persons. After due investigations, the case was challaned and on trial, the learned Additional Sessions Judge No. 1, Sri Ganganagar camp Srikaranpur acquitted accused Kala Singh on the ground that the injury with sharp edged weapon alleged to have been accused by him on the head of the deceased, was not found there at the post -mortem examination and, therefore, his participation was doubtful. How ever, he convicted the appellants Sucha Singh Under Section 302, IPC and Ajaib Singh and Bakar Singh Under Section 302 read with 34, IPC and sentenced them to imprisonment for life and a fine of Rs. 1,000/ - each in default to six months rigorous imprisonment each by his judgment dated 27 -1 -1987.
(3.) ON the above premises, the question posed before us is whether the conviction of the appellant Sucha Singh Under Section 302 and convictions of Ajaib Singh and Bakar Singh Under Section 302 read with 34, IPC are proper or they can be held guilty only of the lesser offences as urged by the learned Counsel for the appellants.;