S.S.BYAS, J. - (1.) JOGENDRA Singh and Daljeet Singh, appellants before us, are real brothers inter -se. They were convicted Under Sections 302/34 326 and 323/34 IPC and eath was sentenced to imprisonment for life with a fine of Rs. 500/ -, in default of payment of fine, to further undergo one year's rigorous imprisonment on the first count and rigorous imprisonment for one year with a fine of Rs. 100/ -, in default of payment of fine to further undergo one month's like imprisonment under the second count and one month's rigorous imprisonment under the third count by the Additional Sessions Judge by his judgment dated December 20, 1985.
(2.) BRIEFLY stated the prosecution case is, that the appellants are the residents of village Badi, Police Station Khairthal, district Alwar. The deceased -victim was also a resident of the same village. PW 1 Vishambbar Dayal, PW 5 Om Prakash, PW 7 Naresh Kumar, PW 8 Sumar, PW 11 Suman Devi, PW13 Rajeshkumar, PW14 Phoolkaur and PW 15 Dhankaur are his close relatives. In the morning on 25 -4 -1984, Om Prakash and his brother Rajesh went to their well for preparing the bricks. The two appellants accompanied with their brothers Amarjeet Singh alias Amru and Birendra Singh alias Biru came there They destroyed the bricks and asked Om Prakash not to prepare the bricks any more. Om Prakash and Rajesh retreated to their house. At about 4 or 4.30 P.M. on the same day, Om Prakash, Rajesh and others again went to prepare the clay bricks. While they were preparing the bricks, the two appellants accompanied with Amru and Biru came there. Accused Amru had a Ballam, Dolu also had a Ballan, Jogender Singh had a Farshi and Biru had a lathi. They opened an onslaught on Rajesh and others. They raised cries. Hearing their cries, Vishambhar, Shiv Lal Naresh Kumar, Sumar, Suman Devi, Phool Kaur and Dhan Kaur who were working nearby in the filed, came rushing there Amarjeet Singh alias Amru thrust the Ballam in the abdomen of Shivlal. Shivlal fell down. Suman, Dhan Kaur and others fried to intervene and they too were not spared by the appellants and their brothers Anru and Biru. Acoused Daijeet Singh struck a blow of his Ballam to Vishambhar Dayal, Shivlal on account of the injuries caused in his abdomen, fell down and became unconscions. The appellants and their brothers thereafter ran away. There was profused bleeding from the wound of Shivlal. Vishambhar Dayal also became unconscious. They were taken in a bullock -cart for treatment to Alwar Shivlal how ever did not survive and breathed his last while in the way to Alwar. Vishambhar Dayal was admitted in the General Hospital, Alwar for treatment. The Hospital authorities informed the Officer -in charge Police, Kotwali, Alwar that a dead body was received in the Hospital and an injured was admitted for treatment. The Station House Officer deputed PW 19 Chiranjilal, ASI to proceed to the General Hospital and record the statement of Vishambhar Dayal. PW 18 Chiranjilal went to the General Hospital, Alwar and recorded the statement Ex. P 1 of Vishambhar Dayal at about 1.30 a.m. on 26 -4 -1984. At about 8.00 a.m. Chiranjilal prepared the Inquest Report of the dead body of Shivlal. Since the offence was committed within the territorial jurisdiction of Police Station, Khairthal, the report Ex. P/1 and the Inquest Report of the victim's dead body were sent to Police Station, Khairthal. The Police, Khairthal registered a case and proceeded with the investigation. The Investigating Officer Mahesh Chandra (PW 20) visited the spot and prepared the site plan. He seized and sealed the blood stained soil found there. The post -mortem examination of the victim's dead body was conducted at about 10.30 a.m. by the Medical Jurist Dr. Mishra (PW 21). The doctor found the following injuries on the victim's dead body. External Injuries: (1) Incised wound epigastric region 4' long with stomach and omtntom lying out side; (2) Incised wound left side abdomon and in the middle cavity deep 2 inch long; (3) Incised wound on left kg 2 inch bone deep 3 inch below knee joint; (4) One inch long incised wound 3 inch below to injury No. 3 on the left leg. Internal Injuries: (1) Incised wound 2 inch long on stomach would material was present out side the stomach; (2) Small incised wound about 1 inch long to in number on small insestine. (3) Incised wound 3 inch long lever and congested. The injuries were ante -mortem caused by sharp edged weapons. In the opinion of Dr. Mishra, the cause of death of the victim was injuries to vital organ, liver, stomach and small intestine. The post mortem examination report prepared by him is Ex. P. 30. The injuries of the other injured persons, viz., Phool Kaur, Om Prakash, Vishambhar Dayal, Suman, another Suman and Naresh were examined by PW 9 Dr. Gupta, the then Medical officer -in -charge, Government dispensary, Khairthal. The X -ray examination was also conducted. All these persons received injuries. Some of the injuries of Vishambhar Dayal and Om Prakash were found to be grevious. The injury reports are Ex. P. 7. to Ex. P. 11. The appellants were arrested. Accused Birendrasingh alias Biru was found below 16 years in age during investigation. Accused Amarjeet Singh alias Amru was in the active service and he was, therefore, not spared by the Army. On the completion of investigation, the Police submitted a crime report against the appellants in the court of Judicial Magistrate, Kishangarhbas. The case against Birendra Singh was referred to the Children's court. Learned Magistrate committed the case for trial to the court of Sessions. Learned Sessions Judge framed charge Under Sections 302, 323, 326 and 324 read with Section 34, IPC against both the appellants, to which they pleaded not guilty and faced the trial. Accused Jogendra Singh pleaded alibi and denied that he was present on the place of incident when it took place. Accused Daljeet Singh put a counter version of the incident. According to him, the relations between the complainant and the accused party were not cordial on account of some litigation between them. On the date of incident when he was returning to his house, he found Om Prakash, Rajesh and Shivlal and others digging his filed Khasra No. 392. He forbade them to do so. Thereupon, deceased Shivlal and others made an assault on him. He received injuries. He snatched away the Zelly from Naresh and swirled at around. He did so to ward of further aggrasion and to protect himself from being further beaten In support of its cace, the prosecution examined 21 witnesses and filed some documents. In defence, the accused examined 2 witnesses, namely, Dr. Major N. Roy Chaudhary (PW I) and R. Pandian, Admn Officer Commanding (PW 2) On the conclusion of trial, the learned Judge found no substance in the defence version. He held the charges duly proved against both the appellants. The appellants were consequently, convicted and sentenced as mentioned at the very out -set. Aggrieved against their conviction, the accused have taken this joint appeal.
(3.) WE have heard Mr. N.I. Tibrewal, learned Counsel for the appellants and Mr. Ashok Parihar, learned Public Prosecutor. We have also gone through the case file carefully.;