K. S. LODHA, J. - (1.) THE appellant Om Prakash has been convicted under section 302, I. P. C. and sentenced to imprisonment for life and a fine of Rs. 200/-in default, two month's further R. I. and Shiyo Prakash has been convicted under section 323, I. P. C. and sentenced to six months' imprisonment (not mentioned whether rigorous or simple) and a fine of Rs. 200/-, in default, one month's R. I. , by the learned Addl. Sessions Judge, Nohar, by his judgment dated 30. 6. 1983. THEy have come up in appeal against their convictions and sentences.
(2.) THE prosecution story briefly stated is that on 10. 3. 82 at about 3. or 3:30 p. m. Ami Lal while on his way to his house, passed near the house of the accused Om Prakash and Shiyo Prakash who happened to be standing in their door, they surrounded him and Om Prakash gave 'kasiya' blow on the head of Ami Lal. Ami Lal's cousin, who was at that time standing out side his house, saw this and ran to rescue Ami Lal. THEreupon, Shiyo Prakash gave a blow with a 'kasiya' on his left hand fingers and another blow on his head and then Om Prakash gave another kasiya blow on the head of Ami Lal, thereupon Ami Lal fell down. At that stage, Madu Ram and Kashi Ram came to their rescue. Ami Lal had lost his consciousness on account of his injuries and was in a precarious condition. Madu Ram and Kashi Ram and some other residents of the village took the injured Ami Lal to Bhadra hospital and Badri Ram proceeded to report the matter to the police. He reached the Police Station, Bhirani at about 5 p. m. and lodged a verbal report to the above effect. He also mentioned that it was on account of an old enmity that Om Prakash wanted to kill Ami Lal and had, therefore, caused him injuries. On this a case under section 307 read with section 34, I. P. C. was registered and the police started investigations. In the course of investigations, the accused Om Prakash, his father Het Ram and his wife Smt. Supari @ Sayara were got examined and the following injuries were found on their persons:- "1. Om Prakash : 1. Abrasion l"x1/2" on the left leg 3" above ankle joint. 2. Abrasion l"x3/4" on the Rt. sterno clavicle region. 3. Abrasion l"x-1/2 on proximal phalyax left index finger. 2. Het Ram : 1. Lacerated wound l"x1/4"x1/8" on the Rt. occipito-parietal region. 3. Smt. Supari @ Sayara: 1. Abrasion 1/4"x1/8" on the left parietal region". After completion of the investigation, the police put up a challan against the accused for offences under sections 302, 307, 326, 323 read with section 34, I. P. C, before the learned Munsif & Judicial Magistrate, Bhadra. ' As in the meantime, Ami Lal had died and the case was converted from 307 to 302, I. P. C. The learned Magistrate committed the accused to the court of Addl. Sessions Judge. The learned Addl. Sessions Judge framed charges under sections 302 and 307 read with 34, I. P. C. against Om Prakash and those under section 302 read with section 34 and 307, I. P. C. against Shiyo Prakash. The accused pleaded not guilty. They were, therefore, tried. The prosecution examined 13 witnesses and produced 30 documents. The accused denied the prosecution story when examined under section 313, Cr. P. C. Their case, however, was that on 10. 3. 82, their father Het Ram, Om Prakash's wife Supari @ Sayara, Munshi, Shanker and his sister Chandro were at their house when the deceased Ami Lal along with Badri, Madu, Kashi, Nathu and some other persons came there armed with 'shela', 'jellees' and 'lathis' and attacked them. When Om Prakash's father Het Ram requested them not to beat them, they gave a lathi blow on his head, whereupon, his father fell down, and other persons also started beating him. Badri Ram gave a blow with the spear underneath his neck and then Ami Lal aimed the lathi blow on his head, whereupon he stretched his hand to avert the blow, therefore, the lathi fell on his fingers. In the meantime, Om Prakash's wife came to their rescue after picking up a spade and she gave a' blow on the head of Ami Lal. Ramji Lal, from the complainant party, also gave a lathi blow on the head of Om Prakash's wife. They were got medically examined by the police. No action was taken against the complainant party despite the fact that they had lodged a report to the police. The accused-persons examined three witnesses in support of their defence. On completion of trial, the learned Addl. Sessions Judge convicted and sentenced the appellants as aforesaid. We have heard the learned counsel for the appellants and the learned P. P. and have gone through the record. The learned counsel for the appellants has raised two contentions before us. His first contention is that the prosecution story as put forward by the alleged eye-witnesses cannot be believed as they have not come out with the genesis of the story and have suppressed material facts and have not explained how the accused Om Prakash, his father Het Ram and his wife Supari got injured in this incident. His second contention is that as a matter of fact the accused had acted in the right of their private defence and they were justified in causing the injuries leading to the death of Ami Lal as also the injuries on the person of Badri Ram and as they were well within their right of private defence of their persons, they cannot be held guilty for any offence. The learned counsel did not, however, challenge that Ami Lal had received injuries leading to his death and Badri Ram had also received injuries as found by the doctor. The learned Public Prosecutor, on the other hand, supported the convictions of the appellants and had endorsed the findings of the learned Addl. Sessions Judge. Having regard 10 the contentions raised before us and having carefully considered them as also the material on record, we are of the opinion that the contentions raised by the learned counsel for the appellants deserve to be accepted.
(3.) AS the learned counsel for the appellants has not challenged the fact that Ami Lal had received the injuries as found on his person by the doctor and died on account of them and the doctor has stated that these injuries, namely, injury no. land 2 which were as under : - "1. Incised wound involving frontal bone 3"x3/4x3/4" verticle on right frontal region, bone cut. 2. Incised wound involving bone 4-1/2-"x3/4"x3/4" - Extending transversely from left to right parietal region bones cut. Left varietal piece (l"xl") separate dura matter of Brain exposed. " were sufficient in the ordinary course of nature to cause death. We need not refer to that part, of the evidence, and we are in agreement with the learned Addl. Sessions Judge that these injuries were sufficient in the ordinary course of nature to cause death, which fact has not been disputed before us by the learned counsel for the appellants. In order to establish its case;the prosecution has examined Badri Ram P. W. 1, Manphool Singh P. W. 2, Kashi Ram P. W. 3 and Madu Ram P. W. 4 as the eye-witnesses. So far as Madu Ram P. W. 4 is concerned, he had turned hostile Kashi Ram P. W. 3 admittedly reached the spot after Ami Lal had already received injuries and had fallen down, and therefore, he could not have, stated how these injuries came to be caused on his person. So far as Manphool Singh P. W. 2 is concerned, he clearly appears to be a chance witness as he does not live in the vicinity of the place of incident and had not given any convincing explanation of his presence there. Not only this, his name does not find mention in the first information report which had been lodged by Badri Ram P. W. 1, the principal witness. He denied having seen Het Ram or Sayara at the spot when according to the Investigating Officer himself these persons had received injuries in this incident and he had got them medically examined. He, therefore, clearly appears to be trying to suppress the truth and in these circumstances, we are not inclined to place any reliance on his testimony. We are then left with the testimony of Badri Ram P. W. 1 alone so far as the manner in which Ami Lal received the injuries. Now this witness states that he had reached the spot on hearing the cries of Ami Lal 'ekjs js ekjs js' which suggests that he was not present at the spot from the very beginning of the incident and could not have seen how it started. Again, he first states that he was at bis house where he heard the cries but then changes his stand and says that he was at the house of his brother. Har Dayal when he heard these cries. This improvement does not appear to be without purpose because, admittedly, he could not have heard or seen the incident from his own house and therefore, he has tried to shift the place from where he heard the cries and rushed to the spot but even if he is accepted to be present at his brother Har Dayal's. house, it does not appear that he could have heard the cries or seen the incident from there also. If that place was such where the cries could have been heard or from where the incident could have been seen, the Investigating Officer would certainly have shown the house of Har Dayal in the site plan Ex. P. 2, but Har Dayal's house has not been shown in this plan. Then again, even if we assume that he was able to hear the cries from the place he was, it was on the hearing of these cries he rushed towards the spot and, therefore, it must be presumed that the first blow on the person of Ami Lal must have been caused at the time when Badri Ram P,w. 1 could not have seen it and, he must have reached the spot only thereafter and, therefore, his evidence also does not explain how the incident started and what was the genesis thereof. The conclusion is inevitable that either the prosecution purposely with held the genesis or as a matter of fact they did not know at all how the incident started. Like, Kashi Ram, he also denies the presence of Het Ram and Sayara at the spot and does not explain how they received injuries. He also does not explain the presence of stains of blood in the 'bakhal' and the 'aangan' of Het Ram, when according to him this incident had taken place out side the house of Het Ram. Another witness, namely. Nathu Ram, who had been stated to be an eyewitness in the first information report, has not been examined by the prosecution and that also gives rise to a presumption against the prosecution. There are some salient features which would cast a doubt about the veracity of the prosecution story, inasmuch as from the prosecution's own evidence, it appears that the incident had taken place out side the house of Het Ram father of the accused and there was no ostensible reason for Ami Lal to go there at that time. Badri Ram had, of course, tried to explain that Ami Lal had gone to pay respects to his mother who was living with Har Dayal. It is worth noting that Har Dayal is the real brother of Badri Ram who is only the cousin of Ami Lal and there was no particular reason for Ami Lal to go for paying respects to his (Badri Ram's) mother on that occasion. ;