JUDGMENT Imtiyaz Murtaza, J.
1. Present appeal has been filed against the judgment and order dated 8.2.1982 passed by Sessions Judge, Fatehpur in S.T. No. 558 of 1980 whereby the appellants have been convicted under Section 302/34 I.P.C. and 324/34 I.P.C. and sentenced to undergo imprisonment for life and three years R.I. respectively. Both the sentences were ordered to run concurrently.
2. Brief facts as mentioned in the F.I.R. lodged by Balbir Yadava are that on 28.12.1978 he went to his field to the east of siphon in his village for harvesting karvi. It was the turn of Jagmohan for taking water from the Tube Well but Badloo was forcibly taking water from Tube Well. Jagmohan, Ram Narain and his mother Rukmani reached at the siphon and they diverted the water to irrigate their field. Jagmohan and Ram Narain sat their and Rukmani went to the field for irrigating. After about one and half hours Ram Singh armed with Pharsa Badloo and Ram Swaroop armed with Lathi came there, threatening Jagmohan and Ram Narain, and started assaulting them. On his cries he and Rukmani, Shiv Ram, Rama Shanker Pandit witnessed the occurrence. They challenged and ran to save Jagmohan and Ram Narain. Thereupon the three accused ran away towards village after causing serious injuries of Lathi and Pharsa to Jagmohan and Ram Narain. As a result of which Jagmohan died on the spot. Ram Narain received injuries on his hand and head. It is further mentioned that there was altercation between Badloo and Jagmohan about five days back with regard to construction of a house by Badloo encroaching on the main pathway of the village. The report was lodged by Balbir Yadav at the police station Chandpur at 5 p.m. on 28.12.1978. After registration of the report S.O. Ram Kumar Verma started investigation. He recorded the statement of Ram Ratan and reached the dispensary Amauli and recorded the statement of Ram Narain. Thereafter he reached at the place of occurrence at 9.45 p.m. He prepared the inquest report of the dead body next morning (Ext. Ka-6). He prepared Naksha lash and challan lash and prepared relevant papers for the post mortem examination (Ext Ka-7 to Ka-9). He prepared the recovery memo of blood stained lungi, Angochha, Sadari, Baniyan and a pair of shoes (Ext Ka-1 to Ka-5) and sickle lying nearby and prepared its recovery memo (Ext Ka-10). The dead body was handed over to constable Rajaram and Head Constable Rameshwar for escorting the dead body to mortuary. Dr. Som Sharma, medical officer, District Hospital, Fatehpur conducted the post mortem examination on the dead body of Jagmohan on 30.12.1978 at 4 p.m. and he noted following ante mortem injuries on his person:
1. Lacerated wound 2 cm. x 1/2 cm. x muscle deep and the front and lower 1/3 of right leg.
2. Abrasion 2 cm. x 1 cm. on the middle of back on lumber region.
3. Abrasion 2 cm. x 1 cm. on the middle of back in thoracic region.
4. Lacerated wound 15 cm. x 3 cm. x muscle and bones deep on the front of face and fore head. Face is unrecognizable. There are fractures on Nasal, maxillary, frontal and mandible bones of face and head. Bones are fractured in pieces. Muscle and parts of fractured bones absent.
5. Incised wound 6 cm. x 2 cm. x bone deep on the left side face from the front of ear upto neck. Margins clean cut, bones clean cut.
3. In the opinion of the doctor cause of death was shock and hemorrhage as a result of above injuries.
4. Dr. K.C. Gupta Medical Officer P.H.C. medically examined Ram Narain on 28.12.1978 at 4.15 p.m. and noted following injuries:
1. Incised wound on the skull 4" x 1/2" x muscle deep in size, margins clean cut, sharp, everted, clotted blood present.
2. Incised wound on the back of the skull 3" x 1/4 x muscle deep in size, margins clean cut, sharp everted, clotted blood present.
3. Lacerated wound on the right side of skull 1/2" x 1/4" muscle deep in size, margins lacerated inverted clotted blood present.
4. Lacerated wound on the right side of skull 1/4" x 1/4" x muscle deep in size margins lacerated, inverted, clotted blood present.
5. Incised wound on the right forearm 1/2" x 1/4" x muscle deep in size, margins clean cut, sharp everted, clotted blood
6. Diffuse swelling on the right forearm 1" about in wrist 1/2" x 1" in size, tender, advised X Ray right forearm
7. Contusions on the left forearm 1 1/2" x 1" in size, tender, reddish in colour Advised X Ray left forearm.
8. Contusion on the back 5" x 1/2" in size, reddish blue in colour
9. Contusion on the right leg, globulas in shape
10. Fresh bleeding from the right ear, advised X Ray skull, 1/2" x 1 1/2" in size, reddish in colour tender.
5. After conclusion of the investigation charge sheet was submitted in the court and the case was committed to the court of Session for the trial.
6. In order to prove its case prosecution relied upon the evidence of eight witnesses, P.W. 1 Ram Narain, P.W. 2 Shiv Raj and P.W. 3 Balbir are eye witnesses of the occurrence. P.W. 4 Dr. Som Sharma conducted post mortem of the deceased, P.W. 5 Dr. K.C. Gupta medically examined injured Ram Narain, P.W. 6 Rama Shankar has been declared hostile, P.W. 7 Ram Ratan handed over the F.I.R. at the police station prepared by the complainant, and P.W. 8 is the investigating officer of the case.
7. The defence has produced three witnesses namely, D.W. 1 Vishu Nath, D.W. 2 Pyarey Shukla and D.W. 3 Laxmi Narayan.
8. Appellant Ram Swaroop and Badloo stated that Jagmohan and Ram Narain diverted the water towards their field. He stated that Jagmohan and Ram Narain attacked him and he and Ram Swaroop had saved them with the held of Lathi and Pharsa which resulted injuries to the deceased and the injured. They have examined D.W. 1 Vishu Nath. He stated that there is one Government Tube Well in the village and there is no other Tube Well. He stated that there was no fixed roaster. D.W. 2 Pyarey Shukla Ziledar of the Tube Well Department proved that in the register about irrigation from Tube Well No. 44 B 9 on 28.12.1978 water was taken by Govardhan, Ram Shanker and Siyaram as noted by the Tube Well operator (Ext Kha-1). D.W. 3 Laxmi Narayn is an alleged eye witness of the occurrence and he proved the defence version.
9. Sessions Judge relying upon the prosecution evidence convicted the appellants, as aforesaid.
10. Contention of learned counsel for the appellants is that prosecution failed to prove its case beyond any reasonable doubt, the injuries caused to the appellants were in the right of exercise of private defence and there is conflict in the direct evidence and the medical evidence.
11. In order to appreciate the contention of the learned counsel we have to examine the testimonies of the eye witnesses and the evidence on record carefully.
12. P.W. 1 Ram Narain stated that he alongwith his brother Jagmohan and mother Rukmani had gone to irrigate their fields. At about 12.30 or 12.45 p.m. on the date of occurrence it was their turn to irrigate their field. He saw that accused were irrigating their field by forcibly diverting the water into their filed. There was a siphon near the Tube Well. They cut the lane and diverted the water towards their filed. Water stopped going to the filed of accused. Jagmohan was sitting near the culvert. He was also sitting on the Mendh of Danak Lohar. His mother went inside the field to irrigate the field. After about 1/2 hours Ram Singh came armed with Pharsa, Ram Swaroop and Badloo armed with Lathi and exhorted to kill them and assaulted with their respective weapons. They raised alarm. His mother Rukmani, Balbir, Shiv Raj and Ram Shanker arrived at the scene and they challenged the accused persons but they ran away towards their village. Jagmohan died on the spot. He received injuries. Balbir, Ram Prakash and Ram Ratan took him to Amauli Hospital where he was medically examained and thereafter he was referred to the District Hospital. Balbir prepared the F.I.R. and it was handed over to Ram Ratan for lodging at the police station.
13. P.W. 2 Shiv Raj stated that on the day of occurrence when he reached near the grove of Bal Govind and field of Beni Prasad he heard some hue and cry from the side of Tube Well. He saw that some marpeet is taking place near the Tube Well. Ram Singh was armed with Pharsa and Badloo and Ram Swaroop were armed with Lathi and they were assaulting. He rushed towards the scene, Balbir, Daya Shanker Pandey and Rukmani also reached there. Accused person ran away towards the village. Jagmohan succumbed to his injuries. Ram Narain received injuries. In the cross examination he stated that he was prosecuted in a case of docaity but he was acquitted. He further stated that he is son of real uncle of the deceased and Balbir. He is also cousin of Ram Narain. Grand fathers of both of them were real brother.
14. P.W. 3 Balbir stated that on the day of occurrence he had gone to cut the Karvi from his field. In the western side of his field there is a Government Tube Well. On the day of occurrence it was the turn of Jagmohan to irrigate his field from the Tube Well but Badloo was forcibly taking the water for irrigating his field. He went to his field and started cutting Karvi. Jagmohan and Ram Narain diverted the water from siphon. At about 1.30 p.m. Ram Singh armed with Pharsa, Badloo and Ram Swaroop armed with Lathi came there and challenged Jagmohan and Ram Narain and started assaulting both of them. The findings of the Sessions Judge are based upon the testimonies of these witnesses.
15. We have carefully examined the testimonies of the above witnesses which indicate that implicit reliance can be placed on their testimonies. All of them were subjected to extensive cross examination but nothing substantial could be extracted there from which could render either their presence on the place of incident or credibility suspect. The testimonies of these witnesses find full corroboration from the medical evidence. The medical examination report of Ram Narain clearly indicates that he received incised wound and lacerated wound and contusions and in the opinion of the doctor injury No. 1,2 and 5 are possible from the sharp edged weapon like pharsa and rest of the injuries could be caused by blunt weapons like lathi. The medical examination report of Ram Narain indicates that in the opinion of the doctor injuries are possible at about 1.30 p.m. which is the time of occurrence. The injuries of Ram Narain clearly establish his presence at the time of occurrence and his version finds full corroboration from the medical evidence. In our opinion the testimony of this witness alone is sufficient to record the finding of guilt.
16. In the present case apart from the testimony of the injured witnesses P.W. 1 Ram Narayan there are two other eye witnesses P.W. 2 and P.W. 3, who also fully supported the prosecution case. The defence has also not challenged the factum of occurrence as it has already been proved because of the presence of injured witness and recovery of blood from the place of occurrence and the inquest report.
17. Appellant Badloo and Ram Swaroop stated that the deceased and injured received injuries while they were defending them. There is nothing on the record to support this contention. The defence has produced one Laxmi Narayan in support of their version of Marpeet. The presence of this witness is not suggested to any of the prosecution witness. This clearly indicates that he is a got up witness. The medical examination and post mortem clearly indicate that the injured and deceased have been mercilessly beaten by the accused persons. The deceased had received five injuries. Injury No. 4 is a lacerated wound of 15 cm. x 3 c. size muscle deep on front of face and fore head. It is further stated that face is unrecognizable. There are fractures of Nasal, Maxillary, frontal and madibular bones of face and head. Bones were fractured in pieces. Such injuries cannot be caused in exercise of private defence. It is a case of intentional murder. Injury No. 5 is also an incised wound 6 cm. x 2 cm. x bone deep on the left side of face from the front of ear upto neck, margins clean cut and bones clean cut.
18. We are of the opinion that the prosecution has fully proved its case beyond reasonable doubt. We accordingly confirm the conviction and sentences of all the appellants.
19. For the reasons stated above, the appeal is dismissed.
20. C.J.M., Fatehpur, therefore, is directed to take the appellants into custody forthwith on receipt of a copy of this judgment and remand them to judicial custody for serving out the sentences as awarded by the trial court and confirmed by us.
21. A report to this effect be also submitted to this court.