JUDGMENT A.B. Srivastava, J.
1. This appeal is directed against a judgment and order dated 26-10-1979 of the IV Additional District and Sessions Judge, Kanpur, whereby by he convicted the appellants Balwan Singh, Tar Babu alias Pratap Singh, Indrasen, Sheo Ram Damroo, Gajodhar and Hira Lal and sentenced each of them under SECTION 302/149, I.P.C. to imprisonment for life, 307/149, I.P.C. to five years' R.I. and SECTION 148, I.P.C. to R.I. for two years, while acquitting their co-accused Hanuman.
2. Parties to this litigation including the deceased Lal Singh belong to village Jonia within the jurisdiction of Police Station Gajner, district Kanpur. All the accused persons hail from a common ancestor. Three of them, Hira Lal, Damroo and Gajodhar are real brothers. Tar Babu and Indrasen are sons of Damroo, Balwan is son of Hira Lal and Sheo Ram is grandson of Gajodhar.
3. According to the prosecution case as set out in the F.I.R. and the statements of the witnesses of fact, a plot of land known as Pandeywala field, situated in village Jonia aforesaid, belonged to one Dhani Ram of the said village. From the first wife of Dhani Ram was born a daughter Sukhdei, who is married in district Jalaun. After the death of his first wife Dhani Ram re-married with Saraswati "Kunwar. No issue was born from this wedlock. The landed property of Dhani Ram including the plot in question devolved upon Saraswati Kunwar after his death. After the death of Saraswati Kunwar the said property was inherited by Sukhdei, who entered into possession over the plot in question also. The accused persons had got a sale deed of this plot executed by Saraswati Kunwar although their name was neither mutated on account of objection by Sukhdei nor possession delivered to them. On the other hand, the name of Sukhadei was mutated after the death of Saraswati Kunwar. For the purposes of looking after her property including the plot in question Sukhdei executed a Mukhtar-nama in favour of Ram Asrey (P.W. 4), the son of first informant Bharosa Singh (P.W. 1). The cultivation on Behalf of Sukhdei was accordingly done by Ram Asrey.
4. On 21-6-1975 at about 5p.m. P.W. 1 Bharosa, P.W. 4, Ram Asrey along with Ram Adhar, went to the Pandeywala field to plough the same. While Ram Asrey was ploughing the field the eight accused persons arrived there hurling abuses. Out of them, Indrasen and Sheo Ram were armed with guns, Tar Babu and Balwan with country made pistol, Damroo and Hira Lal with 'Kanta' Gajodhar with Farsa and Hanuman with a lathi. On arrival at the field they tried to stop Ram Asrey from tilling the land but he did not stop doing so. On this Indrasen and Sheo Ram fired shots with their guns causing injuries to Ram Asrey. On the alarm raised by him, and the two other persons in the field, Sheo Narain, Lal Singh, Ramraj Jimi Pal, Rarn Sajiwan. Mahadeo Ram Bali, Gambhir Singh, Munna Singh and Inderjeet also reached there and tried to intervene, whereupon all accused persons attacked and caused injuries to all these persons as well as Bharosey and Ram Adhar by their respective weapons. The incident and the cries of the victims attracted Chhiddu Majran alias Chhedi Lal (P.W. 2), Sheo Narain, Umrao Singh and several others, who rushed towards the scene of occurrence and challenged the assailants who thereupon fled. All the thirteen injured persons on the informant side were taken from the spot to the UHM Hospital, Kanpur, where they were medically examined from 10.40p.m. on 21-6-1975 up to 4.50 a.m. on 22-6-1975, by Dr. R. S. Pandey (P.W. 9), who prepared injury reports Exhibits Ka 10 to Ka 21 and also provided treatment. Lal Singh who was very seriously injured, died on account of the injuries in the morning of 22-6-1975. The following chart will show the injuries found on the person of each of the injured.
Jimi Pal 1 Multiple lacerated wound l/4 cm x 1/4 depth under observation in an area of 15 cm x 17 cm and left side abdomen lower side, at right side abdomen from 1 cm from midline. Advised X-ray blackening, tattooing and scorching present.
2 Multiple lacerated wound 1/4cm x 1/4 cm x depth under observation in an area of 22 cm x 22 cm x 22 cm , on upper 2/3rd right thigh of front of lateral space. Advised X-ray, Blackening, tattooing and scorching present.
3- Lacerated wound 1/4 cm x 1/4cm depth under observation on left side, forearm. Dorsal aspect. 13.5 cm from elbow. Advised X-ray.
Opinion: Injuries Nos. 1 and 2 caused by projected type of fire arm and injury No. 3 by blunt object.
Ramraj Singh 1 Three lacerated wound 1/4cm x 1/4 cm x depth under observation in an area of 10 cm x 8 cm on right side abdomen 3 cm right to umbilicus. Adv. X-ray.
2 Lacerated wound 1/4cm x 1/4 cm x depth under observation on left side abdomen. 2 cm from umbilicus at 4 O'clock position. Adv. X-ray.
3 Three lacerated wounds 1/4 cm x 1/4cm x depth under observation on penis, upper side. Adv. X-ray.
4 Multiple lacerated wound 1/4 cm x 1/4 cm x depth under observation on left side thigh. Adv. X-ray.
5 Multiple lacerated wound 1/4 cm x 1/4 cm x depth under observation on right side thigh. Adv. X-ray.
6 Multiple lacerated wound on left side leg and knee 1/4 cm x 1/4 cm x depth under observation. Adv. X-ray.
7 Lacerated wound 1/4 cm x 1/4cm x depth under observation on left region. Adv. X-ray.
All injuries caused by projected type of fire arm.
Ram Sajinder Singh 1 Lacerated wound 1/4 cm x l/4 cm x depth under observation on right side face.2 cm below right lower eye lid. Adv. X-ray.
2 Two lacerated wounds 1/4 cm x 1/4 cm depth under observation on left side face, one left side and one 6 cm below left eye. Adv. X-ray.
3 Lacerated wound 1/4 cm x 1/4 cm depth under observation on left upper arm. 8 cm from shoulder Adv. X-ray.
4 Lacerated wound 1/4 cm x 1/4 cm depth under observation on left side forearm. 7 cm from wrist.
5 Lacerated wound l/4cm x l/4cm depth under observation on middle right palmar side. Adv. X-ray.
6 Two lacerated wounds 1 /4 cm x 1 /4 cm depth under observation on left illiac forsa 8 cm from left illiac spine. Adv. X-ray.
7 Multiple lacerated wound 1/4cm x 1 /4 cm depth under observation on right side thigh from and anterior medial and lateral region. Adv. X-ray.
8 Multiple lacerated wound 1/4cm x 1/4cm depth under observation on left side thigh. Lateral side. Adv. X-ray.
9 Lacerated wound on right side on front region l/4 cm x 1/4 cm x depth under observation. 4 cm from Tibia.
All injuries caused by projected type of fire arm.
Ram Bali Singh 1- Lacerated wound 1/4 cm x 1/4 cm x depth under observation on right side chest 8 cm below right nipple. Adv. X-ray.
2 Lacerated wound 1/4 cm x 1/4 cm x depth under observation on right side abdomen 6 cm from umbilicus on 9 O'clock position. Adv. X-ray.
3 Multiple lacerated wound 1/4 cm x 1 /4 cm depth under observation on right side upper thigh on upper 1/3rd. Adv. X-ray.
4 Multiple lacerated wound 1/4 cm x 1/4 cm x depth under observation on left hand. Palmar and Dorsal side. Adv. X-ray.
5 Lacerated wound 1/4cm x 1/4cm x depth under observation on right side wrist. Adv. X-ray.
6 Lacerated wound 1/4 cm x 1/4 cm x depth under observation on right side, ring finger 2.5 cm below base of ring finger.
Injuries caused by projected type of fire arm. Bharosey Singh 1 Swelling 8 cm x 8 cm on left side hand Dorsal side. Adv. X-ray.
2- Lacerated wound 2 cm x 1/2 cm x scalp on top of head.
3 Lacerated wound 2 cm x 1'/2 cm on right side elbow.
4 Swelling 10 cm x 6 cm on middle of leg. Frontal side left side.
5 Contusion 7 cm x 2 cm on right side back above scapular region.
Injuries caused by blunt object. Mahadeo Singh 1 Lacerated wound 1/4 cm x 1/4 cm x depth under observation on right side neck, 5 cm from right ear. Adv. X-ray.
2 Lacerated wound 1/4 cm x 1/4 cm on left side head on occipital region. 12 cm from left ear.
3 Nine lacerated wounds 1/4 cm x 1/4 cm x depth under observation on right side back from upper to lower side. Adv. X-ray.
4 Two lacerated wounds 1 /4 cm x 1 /4 cm x depth under observation on right side buttock.
5 Lacerated wound 1/4 cm x 1/4 cm depth under observation on left side buttock.
6 Lacerated wound 1/4cm x 1/4cm x depth under observation on right side thigh. Left side middle region. Adv. X-ray.
Injury caused by projected type of fire arm. Lal Singh 1 Incised wound 7cm x 2.5 cm x depth under observation on left side chest 7cm below nipple. Adv. X-ray.
2 Lacerated wound 1/4 cm x 1/4 cm x depth under observation on right side chest left side 20.5 cm from right side nipple. Adv. X-ray.
3 Incised wound 4cm x 2cm x muscle deep on right side, 11 cm from right elbow, right side forearm.
4 Lacerated wound 6 cm x 3 cm x scalp U shaped on left side head on occipital right side.
5 Incised wound 2 cm x 1/4 cm x muscle left side thumb at base of left side thumb. Dorsal side.
6 Incised wound I cm x 1/4 cm x muscle deep on middle of little finger dorsal side.
7 Incised wound 8cm x 2cm x muscle deep a right side leg middle region and 15 cm from right knee.
8 Two multiple lacerated wounds 1 /4 cm x 1/4 cm depth under observation on left side buttock. Blackening tattooing scorching present in area of 16 cm x 18 cm. Adv. X-ray.
9 Incised wound 7 cm x 2 cm on muscle medial side of left knee.
10- Incised wound 6 cm x 2.5 cm x muscle on posterior medial space on lower 1/3rd thigh.
Injuries Nos. 1, 3, 5, 6, 7, 9, 10 caused by sharp object. No. 8 by projected type firearm and rest by blunt object.
Ram Adhar Singh 1-Two lacerated wounds l/4 cm x 1/4cm x depth under observation on left side chest in area of 8 cm, 3cm from left nipple. Adv. X-ray.
2 Three lacerated wounds 1/4 cm x 1/4 cm x depth under observation on left upper arm on middle of upper arm 10 cm left tip of shoulder. Adv. X-ray.
3 Two lacerated wounds 1 /4 cm x 1 /4 cm x depth under observation on left side elbow. Adv. X-ray.
4 Three lacerated wound 1/4cm x 1 /4 cm x depth under observation outer side. Abdomen 12cm x 7cm x 5cm left to umbilicus. Adv. X-ray.
5 Multiple contusion on whole back 10 cm x 2 cm to 8 cm x 2 cm.
Injury No. 5 caused by blunt object rest by projected type of fire arm. Injuries Nos. 1, 2, 3, 4 under observation and No. 5 simple.
Sheo Narain Singh 1 Lacerated wound 1/4 cm x 1/4 cm x depth under observation on top of forehead 6 cm from middle of eye brow. Adv. X-ray.
2 TWO lacerated wounds 1 /4 cm x 1 /4 cm x depth under observation on right side face. 2 cm from right, lat. angle of eye and one 2.5 cm from right lat. angle of mouth.
3 Incised wound 4.5 cm x 1 cm x muscle on left side forearm outer aspect 6 cm from elbow.
4 Multiple lacerated wound 1/4cm x 1 /4 cm x depth under observation on left side thigh all over Adv. X-ray.
5 Multiple lacerated wound on right side thigh. 1/4 cm x 1/4 cm depth under observation. Adv. X-ray.
6 Multiple lacerated wound on left side leg. 1/4 cm x 1/4 cm x depth under observation. Adv. X-ray.
Injuries Nos. 1, 2, 4, 5, 6 caused by projected type of fire arm, No. 3 sharp object..
Ram Asrey Singh 1 Two lacerated wounds 1/4 cm x l/4cm x depth under observation on right side face one on chin and one 1 cm from right angle of mouth. Adv. X-ray.
2Six lacerated wound l/4cm x l/4cm x depth under observation on left side chest. Adv. X-ray.
3 Three lacerated wound on right side chin. 1/4 cm x 1/4 cm x depth under observa-tion. 2 cm sternal region. Adv. X-ray 4- Seven lacerated wounds on right side abdomen 1/4cm x 1/4cm x depth under observation. Adv. X-ray.
5 Nine lacerated wounds on left side abdomen l/4cm x l/4cm x depth under observation. Adv. X-ray.
6 Multiple lacerated wound on side buttock. Adv. X-ray.
7 Five lacerated wounds 1/4 cm x 1 / 4 cm depth under observation on left side thigh. Adv. X-ray.
8 Multiple lacerated wound 1/4 cm x 1/4 cm x depth under observation right side thigh. Adv. X-ray.
9 Eight lacerated wounds 1/4 cm 1/4 cm x depth under observation on right knee. Adv. X-ray.
Injuries caused by projected type of fire arm. Munna Singh 1 Lacerated wound 1/4 cm x 1/4 cm x depth under observation on right side thigh. Adv. X-ray 1.5 cm from other knee. Adv. Xray.
2 Lacerated wound 1/4cm x 1/4cm x depth under observation on right side knee. On medial aspect. Adv. X-ray.
3 Lacerated wound 1/4 cm x 1/4 cm depth under observation on right side muscle. Adv. X-ray.
Injuries caused by blunt object. Gambhir Singh 1 Lacerated wound 1/4cm x 1/4cm depth under observation on sternal region on middle side 3.5 from above sternal. Adv. X-ray.
2 Two lacerated wounds 1/4 cm x 1/4 cm x depth under observation left side thigh both on upper 1/3rd of thigh frontal and lateral side. One 11.5cm from left illiac spine and other 15.5cm from left illiac spine. Adv. X-ray.
3 Lacerated wound 1/4cm x 1/4cm on depth under observation on medial side of thigh right side 14cm from right knee. Adv. X-ray.
Injuries caused by blunt object. Indrajeet Singh 1 Lacerated wound 1/4 cm x 1/4 cm x depth under observation on middle right leg medial aspect. Adv. X-ray.
2 Lacerated wound 1/4 cm x 1/4cm x depth under observation on left side thigh back side.
3 Lacerated wound 1/4 cm x 1/4cm x depth under observation on left side hip internal side.
All-injuries were caused by blunt object.
Injuries of all the above injured persons were of 6 to 12 hours duration.
5. A written report Exhibit Ka 1 regarding this incident was thereafter prepared by informant Bharosa Singh and lodged at the Police Station Kotwali, Kanpur the same day at 11.15 a.m. The chik F.I.R. was registered by Om Prakash Saxena (P.W. 6) then Head Contable, P. S. Kotwali. The papers were sent to Police Station, Gajner on 22-6-1975 itself where it was recorded in the General Diary at 6.10 p.m. by K. P. Pandey (P.W. 3) then Head Constable writer at the said Police Station. Investigation of the case was taken up by S. I. Balbir Singh Chauhan (since dead).
6. Meanwhile inquest of the dead body of Lal Singh was made by S.I. of Police Station Kotwali, Kanpur, and the dead body was sent to the mortuary for post-mortem examination through Constable Surat Singh and Sheo Bahadur Singh. Post-mortem examination was made by Dr. G. C. Gupta (P.W. 8) on 22-6-1975 at 4.45 p.m. and the following nte-mortem injuries were found vide postmortem report Exhibit Ka 8.
1 Stitched wound 3" long on the parietal and occipital region. 6" above the left ear. When stitches removed wound, was bone deep.
2 Stitched wound 2%" long on the front of chest left side. Chest cavity deep.
3 Stitched wound 1" long on the back of thumb. Bone deep.
4 Stitched wound 2/2" long inner side of left knee. Bone deep.
5 Stitched wound 3" long front of right leg. Bone deep.
6 Stitched wound 2 1/2" long on the back of forearm in the middle. Bone deep.
7 Gun shot qua wound 1/4" x 1/4" x chest cavity deep on the right flank on the 10th rib.
8 Stitched wound 3 1/2" long on the back of left knee.
9 Multiple gun shot wounds on the left buttock in an area 8" x 9".
10 Incised wound 1/2" x 1/2" muscle deep on the left little finger.
7. On internal examination the plura was found to be red and congested, left cavity contained 12 ounces and right cavity one ounce blood. Right lung was congested and perforated. One pellet was found therein. Left lung was also red and congested and ruptured under injury No. 2.
8. Seven pellets were recovered from the left buttock under injury No. 9.
9. Death of the deceased was due to shock and haemorrhage as a result of injuries in the chest.
10. The Investigating Officer who visited the spot of occurrence prepared a site plan Exhibit Ka 6 of the place of occurrence, recorded the statement of witnesses and laid charge-sheet against the accused persons.
11. All the accused persons pleaded not guilty on the charges framed against them and denied the correctness of the prosecution version regarding this incident barring the presence and participation of four of the accused-appellants Hira Lal, Damroo Sheo Ram Singh and Gajodhar who were also injured in this incident. They set up a counter-version regarding the informant party being aggressor, and injuries to the persons on the informant side including fatal injuries to the deceased Lal Singh being caused in exercise of right of private defence of person and property by the accused party.
12. According to the defence version as contained in the statements under Section 313, Cr.P.C. appellant Sheo Narain Singh and cross F.I.R. Exhibit Kha 1 lodged by appellant Hira Lal on 23-6-1975 at 9.15 p.m., a sale deed dated 21-2-1971 in respect of the plot in question was executed by Sarswati Kunwar in favour of appellants Hanuman, Balwan Singh Indrasen, Gajodhar and non-appellant Ram Swarup, brother of, Hanu-rnan, Bharat Singh son of Hira Lal and Suraj Singh father of appellant Sheo Ram, and possession was also delivered. Smt. Sukhdei fictitiously claiming to be daughter of Dhani Ram the husband of Saraswati Kunwar made a dispute on which proceedings underSection 148, Cr.P.C. were started and upholding the possession of the vendees the plot was released in their favour from attachment. On 21-6-S975 between 4 and 5 p.m. 35 persons of the informant party, including deceased Lal Singh and the 12 injuried persons, forming an unlawful assembly reached the said plot to take forcible possession, while Hira Lal Gajodhar and Damroo was ploughing the said field for sowing paddy. Ram Asrey, deceased Lai Singh, Babu Singh and Jimipal were armed with 'Katta' Bans Gopal with a gun, Kallu with a 'Barchhi' and Bachani with a lathi. They assaulted Hira Lal, Gajodhar and Damroo, causing serious injuries to them. On hearing noise appellant Sheo Ram came from his house with a gun and challenged, whereupon the assailants beat him also and Bans Gopal fired at him by his gun. Sheo Ram thereupon started firing with his gun in exercise of private defence of person and propery. Hira Lal and others used sickle 'Khurpi' etc. in their self-defence.
13. On behalf of the defence D.W. 1 Subedar has been examined to state on the point of possession of the appellants over the plot purchased from Sarswati Kunwar, and also about the defence version of the incident in which according to him on being attacked by the people of the informant party appellant Sheo Ram made 3-4 fires from his gun, Hira Lal, Gajodhar and Damroo were using a small 'danda', sickle and a 'khurpi' in their defence. He himself snatched the 'Barchhi' of Kallu Singh and separated the warring functions with the help of it. After the incident left 14-15 persons lying injuried on the ground which included Ram Asrey and deceased Lal Singh.
14. The D.W. 2 B. M. Pandey, Orthopaedic Surgeon, U.H.M. Hospital, Kanpur is the next defence witness who had examined the injuries of the four injured accused persons with the following result.
1 Lacerated wound 5 cm x 5 cm scalp one right partial region 5.5 cm above right eye brows.
2 Incised wound 4 cm x 1 cm x bone deep over upper 1 / 3rd left arm 3 cm below elbow postero medial aspect.
3 Incised wound 2.5 cm x .3 cm x muscle deep .3 cm below and slightly outer to No. 2. Associated swelling 6 cm x 8 cm.
4 Liner abrasion 10cm over medial aspect of left thigh.
5 Incised wound 3 cm x 25 cm present over R. C. region.
6 Cuntused swelling 15 cm x 8cm over right supra spirious region.
7 Contused swelling left global region 6 cm x 6 cm. Injuries Nos. 1,4, 6, 7 caused by hard and blunt Nos. 2, 3, 5 by sharp edged weapon.
Damroo 1 Lacerated wound 4 cm x 5 cm x scalp parietal region 7 cm above left ear.
2 Lacerated wound 2.5 cm x .5 cm x scalp 3.5 cm behind left ear.
3 Lacerated wound 3 cm x .5 cm x scalp over mid pareital region. 2 cm from root of nose.
4 Lacerated wound 4 cm x 5 cm x scalp 5 cm from injury No. 1.
5 Lacerated wound 6 cm x .5 cm x scalp deep over occipital.
6 Multiple contusions varying from 5 cm to 15 cm raised margine 6 in number left side chest. 22/6 7 C/o pain over upper portion of neck.
Injuries caused by hard and blunt object. Shiv Ram Singh 1 - Lacerated wound 3 cm x 3 cm scalp left parietal region, 12cm above left ear.
2 Lacerated wound 3 cm x 1 cm x scalp deep over frontal region 7 cm above root of nose.
3 Contused swelling out aspect left thigh 8 cm x 2 cm middle.
4 Contused swelling right hand over dorsem 4th mate carpel.
All injuries are simple except injury No. 4. Gajodhar 1 Lacerated wound 5.5cm x 1cm x 6 bone deep over vertex.
2 Lacerated wound 9 cm x 2 cm x bone . deep over occipital region.
3 Lacerated wound 1.5 cm x .3 cm x scalp just in front of injury No. 2.
4 Lacerated wound 5.5 cm x 1 cm scalp over occipital region .5 cm below injury No. 1.
5 Contusion 8 cm x 3 cm vertical mid scapular region.
6 Contusion 13 cm x 4cm transversely placed middle of back.
7 Contusion two 11 cm x 11 cm each 1 cm apart left side back just below injury No. 6.
All injuries were simple and about 3/4 days old.
15. The prosecution in this case produced Bharosa Singh (P.W. 1), Cheddu Maharaj alias Chhedi Lal (P.W. 2), Ram Asrey (P.W. 4), and Ram Sajiwan (P.W. 5) as eye witnesses, to prove its allegations. Rest of the witnesses P.W. 3, K. P. Pandey writer of G.D. entry of Gajner, P.W. 6 Om Prakash Saxena writer of the chik F.I.R. at Police Station Kotwali, P.W. 7 Rameshwar Dayal Yadav, gave secondary evidence about investigation, Dr. G. C. Gupta who conducted post-mortem examination and Dr. R. S. Pandey who examined the injury including the deceased while he was still alive, are formal witnesses.
16. The learned trial Court on a consideration of the evidence on record held the informant party to be in possession over the plot in question and further held the prosecution version regarding the incident established beyond reasonable doubts are rejecting the defence version regarding possession, causing injuries and death in self-defence, convicted and sentenced all the seven accused appellants, as stated above, while acquitting accused Hanuman giving benefit of doubt.
17. Learned counsel S/Shri P. N. Mishra and G. S. Chaturvedi appearing on behalf of the appellants and the learned A.G. A. appearing on behalf of the respondent have been heard at sufficient length. We have also been taken through the evidence on record.
18. As would appear from the facts of both the parties' versions narrated above, there is no dispute between them about the date tirne and place of occurrence as well as the factum of injuries to 13 persons on the informant side, including the fatal injuries to deceased Lal Singh, as well as injuries to four of the appellants Hira Lal, Damroo Sheo Ram and Gajodhar is not disputed. It is the case of both the parties in their respective F.I.Rs. lodged by them as well as oral evidence led by them, that the incident occurred in the plot known as 'Pandey wala field' in village Jonia at about 5 p.m on 21-6-1975. The version of the eye witnesses (P.Ws. 1 and 3 to 5) regarding injuries having been caused in this incident to 13 persons, whose injury reports are Exhibits Ka 9 to Ka 21, as well as the death of Lal Singh the next morning on account of the injuries received in this incident is not challenged. The same is also proved by the medical evidence consisting of the testimony of P.W. 8, Dr. G. C. Gupta and P.W. 9, Dr. R. S. Pandey.
19. That injuries as mentioned in Exhibit Kha 2 to Kha 5, already narrated above, occurred to appellants Hira Lal, Damroo, Sheo Ram and Gajodhar, besides being proved by the testimony of D.W. 1 Subedar and D.W. 2 Dr. B. M. Pandey, are also impliedly admitted by the informant P.W. 1, Bharosa Singh who stated in paragraph 16 of his statement that injuries might have been-received by these accused persons in view of the fact that hurt might have been caused to them in self-defence by deceased Lal Singh.
20. The parties are at issue on the points as to whether it was the informant party or the accused persons who were entitled to, and in, possession of the plot known as Pandeywala field, whether it was the accused party consisting of the seven appellants and one more person, who were aggressors an attacked and assaulted the people on the informant side including deceased Lai Singh, to prevent them from ploughing the said field and with intention to cause hurt and death, and injury to four of the accused-appellants were caused during the incident as aforesaid, in exercise of right of private defence by the informant party, or whether the informant party itself were aggressors and attacked and caused hurt to the four appellants to prevent them ploughing the said field and the fatal injuries to deceased Lal Singh and injuries to 12 others on the informant side were caused by these four appellants in private defence of person and property.
21. The first question requiring consideration thus would be about the possession of the plot known as Pandeywala field. Admittedly, as said above the said plot belonged to late Dhani Ram. After his death it was inherited by his widow Sarswati Kunwar. The appellants have filled Exhibit Kha 13, a copy of sale deed executed by Saraswati Kunwar on 24-2-1971 in favour of Ram Swarup, Hanuman, Bharat Singh, Suraj Singh and appellants Balwan Singh, Indrasen and Gajodhar Singh. D.W. 1, Subedar Singh has stated that the vendees which included the appellants and their family members have been in possession over the plot in question since the execution of the sale deed aforesaid. The defence has also filed documents relating to proceedings underSection 145, Cr.P.C. between Sukhdei, claiming to be the daughter of Dhani Ram and the accused party in respect of this plot. Exhibit Kha 26 is the judgment dated 17-9-1971 of the Munsif, Kanpur in reference underSection 146, Cr.P.C. arising out of the aforesaid proceedings under Section 145, Cr.P.C. whereby he held the accused party to be in possession over this plot on 5-4-1971 the date of preliminary order and within two months before the same. And, by order dated 4-10-1971 of the S.D.M., Akbarpur, District Kanpur, Exhibit Kha 27 the proceedings under Section 145, Cr.P.C. terminated in favour of the accused, persons and Smt. Sukhdei Kunwar was restrained from disturbing their possession. By means of Exhibit Kha 28 the report of P. S. Gajner, district Kanpur, the said plot was released from attachment in favour of the accused persons through Smt. Vishnu Devi, the widow of Ram Swarup one of the vendees.
22. Amongst the revenue records Exhibit Kha 9 Ch Form No. 41 shows that new plot No. 250 A and B correspond to minjumla plots Nos. 227, 228, 229 and 232. Khatauni 1381 to 1383 Exhibit Ka24 shows mutation of the name of Sukhdei Kunwar as heir in place of Sarswati Kunwar under Section 171 of the Z. A. Act, Khasra 1382 Exhibit Kha 11 records Sarswati Kunwar and 1386 F, Exhibit Ka 25, records Sukhdei over plot No. 250. Exhibit Kha 16 Khasra of irrigation 1380 F records Hira Lal over plots Nos. 227, 228, 229, 232 in the Khariff and Smt. Saraswati Kunwar in the Rabi season. Khasra 1381 records over the aforesaid plots Hira Lal in Kharif. Indrasen and one Babu Lal in Rabi; Khasra irrigation 1382F records Indeasen and Hira Lal showing both Rabi and Kharif Khasra 1383 F says that in. Kharif no one irrigated these plots whereas in Rabi it was irrigated by Indrasen and Hira Lal.
23. Exhibit Kha 31 is a certified copy of grounds of revision in Revision No. 159/LR/ 75-76 in the Board of Revenue, ULP. Lucknow indicating that by a judgment dated 9-4-1975 of the Naib Tehsildar mutation was ordered in favour of Smt. Sukhdei as heir of Smt. Saraswati Kunwar. The appeal against the same was dismissed on 13-2-1976 by the Additional Collector, Kanpur, against which the revision was filed by Indrasen, Harnam Singh and appellants Balwan Singh and Hira Lal. Exhibit Kha 32 is the memo of revision before the Commissioner, Allahabad Division in Revision No. 64 of 1978 indicating that the mutation application of the vendees on the basis of the sale deed of Sarswati Kunwar was rejected by the Naib Tehsildar on 6-6-1976, appeal against the same was dismissed by the S.D.O. on 24-2-1978 against which, the revision was filed before the Commissioner.
24. In oral evidence the P.W. 1 Bhorosa Singh stated that after the death of Sarswati Kunwar the plot in question as well as other plots were inherited by Sukhdei Kunwar. The accused persons though had got a sale deed executed by Sarswati Kunwar, neither they entered into possession nor their names were mutated. The P.W. 4, Ram Asrey, son of P.W. I, Bharosa Singh stated that Smt. Sukhdei has all along been owner and in possession of the plot in question, the accused persons were never in possession over the same. He had been looking after the cultivation of Sukhdei in those and other plots since about 1 1/2. years before the occurrence. On 31-5-1974 Smt. Sukhdei executed a Mukhtarnama Exhibit Ka3 in his favour authorising him to carry on her cultivation and also are performing the acts .necessary in connection with litigation relating to the posts. According to him he cultivated the plots of Sukhdei on 'batai'.
25. In the above state of oral and documentary evidence, therefore, two things are clear. That there was a dispute between Sukhdei and the accused persons regarding title to the plot in question, Sukhdei claiming to have inherited the same from her step mother Sarswati Kunwar, and the appellants on the basis of a sale deed by Saraswati Kunwar. The sale deed relied on by the appellants is of the year 1971. It is no doubt a fact that mutation on the basis of the sale deed of the name of the vendees, some of whom are appellants, was refused by the revenue Courts and mutation was ordered of the same of Sukhdei Kunwar, yet according to the judg merit in proceedings under Section 145, Cr.P.C. based on the findings of the Munsif under Section 146, Cr.P.C. possession by the said Court was found to be of the vendees. In view of the provisions of Sub-section (6)(a) of Sec. 145, Cr.P.C., the effect of declaration by a Magistrate of a party to be entitled to possession is that until evicted therefrom in due course of law the other party is forbidden from disturbing such possession. It is not the case of the informant's side that Sukhdei Kunwar in any manner by Court process or otherwise evicted the appellants. On the other hand, copy of plaint and judgment dated 19-9-1977 of the Court of Additional Munsif, Kanpur Exhibit Ka30 shows that in the said suit as injunction was issued to Smt. Shukh-dei Ram Asrey. Ram Adhar and others from interfering with the possession of the appellants and other co-vendees. Irrespective of the dispute regarding title, therefore, we find the accused appellants to have produced sufficient material on record to indicate their possession over the plot in question, in respect of which this incident occurred.
26. This brings us to the question regarding the genesis beginning, and the details of the incident, in which as already said above people of both sides participated and received injuries. The number of injured from the side of prosecution being 13 including one dead, and the injured from the accused appellants side being four. In this regard, although the witnesses examined by the two sides and the documents relied, repeat their respective version, when analysed critically in the light of the various circumstances including the details and nature of the injuries, it would be found that the version of both the parties is only partly correct. It is in the evidence of the P.W. 1 Bharosa Singh that being power of attorney-holder of Sukhdei Kunwar, entrusted also with cultivating her plots, he along with his son Ram Asrey (P.W. 4) and Ram Adhar and gone to plough the plot in question. While Ram Asrey was in the process of ploughing and the two others were standing there, the seven appellants along with Hanuman (since acquitted by the trial Court) came there duly armed and tried to prevent Ram Asrey from ploughing, when he did not pay any heed Indrasen and Sheo Ram fired shots with their guns hitting Ram Asrey. On the alarm raised Sheo Narain, Lal Singh, Ram Raj, Jimipal, Sajiwan, Mahadei, Ram Bali, Gambhir Singh, Munna Singh, Indra-jeet Singh came running to intervene. Indrasen and Sheo Ram with guns, Tar Babu and Balwan with country-made pistols kept on firing and others attacked with their weapons with the result that all these persons fell, seriously injured. Lal Singh was attacked and injured also by 'kanta' and 'barchi'. He died in the hospital next morning. To the same effect is the statement of P.W. 2, Chhedu Maharaj alias Chhedi Lal, Ram Asrey, P.W. 4 and Ram Sajiwan, P.W. 5. P.W. 1 also stated that whatever injuries were passed in this incident to four of the appellants were caused in self-defence by deceased Lal Singh.
27. The testimony of Subedar, D.W. 1 and the version in the cross F.I.R. lodged by appellant Hira Lal on the other hand is to the effect that, while appellants Hira Lal, Gajodhar and Damroo were ploughing the said field, Ram Asrey and others of the informant party 30-35 in number, came there and a quarrel started. The members of the informant party including deceased Lal Singh attacked and caused injuries to Hira Lal, Gajodhar, Damroo and Sheo Rarn. Sheo Ram who brought a gun from his home tired-and caused injuries to the peopleon the informant party whereafter the quarrel subsided, leaving 14-15 persons including deceased Lal Singh lying injured.
28. The real clue to what happened on the spot, however, will be found on a cumulative consideration of the aforesaid oral testimony as well as the injuries caused to the persons on the two sides. The fact that as many as 13 persons on the informant side received injuries, five of them by fire arms, two both by' fire arm and blunt objects, one by fire arm, blunt object as well as a sharp object, another by tire arm and sharp object and four by blunt objects is eloquently indicative to the fact that the number of persons responsible for these injuries were much more than four contended by the defence, and weapons were also besides fire arms, sharp edged weapons like 'Kanta', 'Farsa' and lathi and not. merely a gun, a sickle, a khurpi and a small stick as suggested by the defence.
29. Similarly the fact of three of the appellants Damroo, Sheo Ram and Gajodhar receiving injuries caused by hard and blunt objects and Hira Lal receiving injuries caused by blunt object as well as sharp edged weapon, goes to indicate that even some of the members of the informant party were armed with sharp edged and blunt objects and injuries to these persons were caused by more than one person from amongst the members of the informant party.
30. Keeping in mind the above factors, in order to determine as to what exactly happened in this incident on the spot, it will be useful to appraise the direct evidence on record with regard to the respective versions of the parties as well as in the light of the surrounding circumstances and deducible inferences.
31. In this regard the statement of P. W. 1 informant Bharosa Singh is that he along with his son Ram Asrey and Ram Adhar had gone to the plot in question to plough the same and Ram Asrey was in the process of ploughing when the eight accused persons, Indrasen and Sheo Ram with guns, Tar Babu and Balwan Tamancha', Hanuman with a 'barchhi' Gajodhar with 'kanta', Hira Lal and Damroo with 'Farsa' came there and asked Ram Adhar to stop ploughing and on his refusal the two guns fired hitting Ram Asrey. On alarm when the other injured persons of the prosecution side came to intervene, all the accused persons with their weapons attacked them also resulting into injuries to ail the thirteen persons on the informant side including the informant himself and one of them Lai Singh fatally. Lal Singh according to him had received injuries both by 'kanta' and 'barchhis' and died in the hospital next morning. Cross-examined he stated that the quarrel and the marpit started on the plot in question. The marpit took in all 2-3 minutes. He does not remember as to from amongst the villagers who took injured persons to hospital on cots. He disowned the recital in the F.I.R. that non-appellant accused Hanuman was armed with a lathi.
32. The P.W. 2 Chhiddu Mahraj alias Chhedi Lal stated that he was in his chak situated near the plot in question, which Rarn Asrey was ploughing in the presence of informant Bharosa and Ram Adhar. The accused persons Sheo Raj and Indrasen with gun, Balwan and Tar Babu with pistol, Hira Lal and Damroo with Farsa, Gajodhar with a 'kanta' and Human with a Ballam fitted in lathi reached there and prevented Ram Adhar from plouging the said plot. When he did not stop, they abused him and Sheo Ram and Indrasden fired with their guns. On alarm being raised the other injured! persons, about 10-12 persons, working in the fields nearby including the ten persons injured besides Bharosa Ram Asrey and Ram Adhar in this incident, rushed there and tried to intervene, whereupon the accused persons attacked them also with their weapons causing injuries. Some of them who had lathis used the same in their defence resulting into injuries to the persons on the accused side. After the accused persons fled, a number of villagers came there and took the seriously injured on cots and others on foot to the hospital. Cross-examined he stated that these ten injured persons came from different directions and 3-4 of them had lathis. He further stated that in all 8-9 shots were fired by those accused who had fire arms. Further he stated that none from the prosecution side had any sharp edged weapon.
33. P.W. 4 Ram Asrey, yet other eye witnesses and injured also stated about his ploughing the plot in question in the presence of Bharosa and Ram Adhar when the accused persons with the weapons, stated above, came there and first prevented from ploughing and two of them Indrasen and Sheo Ram fired with guns resulting into injuries to him. .A number of persons rushed towards the scene of occurrence on hearing alarm and those trying to intervene, including deceased Lai Singh, were attacked by the accused persons with their respective weapons causing serious injuries. Deceased Lal Singh had received injuries by gun, 'Kanta', 'Farsa' and 'Ballam'. Cross-examined, he stated that in all 10-12 shots were fired by the other accused persons. The assult by 'kanta', 'ballam', and other weapons occurred after start of the firing.
34. The P.W. 5 Ram Sajiwan, also an injured, stated that he was ploughing his field near the plot in question when this incident took place. On seeing the assault on Ram Asrey he along with the other persons in the vicinity rushed towards the scene of occurrence and intervened, on which they were also attacked by the accused persons resulting into injuries in all to 13 persons. ' Injuries to deceased Lal Singh were caused by 'Farsa', 'Kanta' and gun.
35. The D. W. 1 Subedar, the only witness of fact examined on behalf of the defence, stated that while he was present near temple situated near the plot in question, intervened by two other plots, he saw appellants Hira Lal, Gajodhar and Damroo ploughing the said plot. He further saw Ram Asrey and other 30-35 persons coming towards the said plot, within a short time they reached near the said plot. When the quarrel started he saw Sheo Ram going towards the scene of occurrence. On the alarm raised by Hira Lal and Gajodhar he and Mata Prasad reached there and saw Ram Asrey and others beating Sheo Ram, Gajodhar, Hira Lal, Damroo had already been injured. Amongst the assailants were, Ram Asrey, Jimi Pal, Lal Singh, Kallu Singh, Mahabir, Ram Nath, Mundey Singh etc. 30-35 persons in all. On being injured, Sheo Ram fired 3-4 shots towards the assailants, snatching the 'barchhi' of Kallu Singh he separated those fighting by it. Hira Lal, Gajodhar and Damroo were using small sticks, sickle and "Khurpi' in defence. After firing shots by Sheo Ram, the quarrel ceased and Ram Asrey and others ran away. Then he said that 14-15 persons lay injured on the spot after the incident, which included Ram Asrey and deceased Lal Singh. Further he stated that Balwan, Tar Baboo, Indrasen and Hanuman were not present on the spot. Cross-examined, he stated that when his attention was first attracted, both sides were indulging in marpit. He did not use 'barchhi' for causing injury to anybody rather only separated those fighting. Further he stated that amongst the 35 persons, only 10-20 were attacking the other side by 'Kanta' Lathi and 'ballam'.
36. The above would go to show that although the two sides have tried to stick to their guns, by repeating more or less their respective version contain in their F.I.R. regarding other side being rank aggressor, the oral evidence when analysed in the light of the attending circumstances will reveal that in their zeal they both have attempted to side track their own role in this entire incident and minimise the number of participants from their own side.
37. The number of injuries to the two sides is itself indicative of the fact that the contention of the first informant, that they were initially three in number and it swell to 13, when ten others from the surrounding plots came to their rescue, and the version of the accused party that they were in all three persons when the incident started, and were joined by one more person to make the total four are not correct. To the injured, on the informant side, the total number of injuries caused, according to the medical reports, were 43 gun shot wounds, 8 sharp edged weapons injuries and 18 blunt weapon injuries, one of which to Ram Adhar was contusions all over back. Obviously the number was so large that it could not be counted and would not have been less 10 or 11. This will take the number of blunt weapons injuries to about 30, making a total of 80 injuries in all. Such large number of injuries could not be caused by mere four persons who themselves were under attack. As already stated above 30 blunt weapon injuries could not be caused by small stick used in self-defence, nor eight incised wounds of the size found, could be caused by Khurpi or sickle. The number of fire arm injuries 43 covering eight injured persons, viewed in the light of the seat of injuries, rules out the possibility of all these having been caused by one weapon or by one person who himself was under attack. In fact the number of injuries, number of persons injured and location of injuries, goes to corroborate the version of prosecution witnesses that there were four persons armed with fire arms who fire shouts towards them causing these injuries. The resultant position is that the presence and participation of all the eight accused persons including non-appellant Hanuman (since acquitted) in this incident is fully proved by the direct supported medical evidence and cirumstances.
38. It has been laid down in Brathi v. State of Punjab, that where the evidence examined by the appellate court unmistakably proves that the appellant was guilty under Section 34 having shared common intention with other accused who were acquitted, and that the acquittal was bad, there is nothing to prevent the appellate court from expressing the view and giving finding and determining the guilt of the appellant before it, on the basis of that finding. In view of this legal proposition the fact of acquittal of the accused Hanuman by the trial court is immaterial in the context of all the facts found above indicating participation of one of the members of accused side with lathi, a fact also clearly mentioned in the F.I.R.
39. Likewise 29 injuries in all, three by sharp object and 26 by blunt weapons, having been caused to four of the accused persons, is idicative of the fact that all these injuries could not have been caused by one person, deceased Lal Singh as stated by P.W. 1 Bharosa Singh or by only some lathi bearing persons from amongst those on the informant side as stated by P.W. 2 Chhiddu Majraj. The reason being that at least three of the injuries to the accused Hira Lal were incised wounds.
It is highly improbable that three incised wounds and 26 blunt object injuries could be caused only by a few persons bearing lathi and themselves being under attack. Clearly therefore, the participants in this incident from the informant side were all the 13 injured persons including deceased Lai Singh. Of course the absence of any gun shot injury to any of the accused persons shows that no one from the informant side was armed with fire arm and the version of the defence to that effect is not correct.
40. Analysed in the back drop of the above found facts relating to the possession of the accused party over the plot known as Pande-Wala-Field, despite there being a dispute of title between them on the one hand, and Smt. Sukhdei Kunwar and her attorney Ram Ashrey, P.W. 4 and his father informant Bharosa Singh on the other, and the factum of injuries being caused to the persons of both sides in an incident of fighting in and around the said plot the fact emerging from the testimony of the eye witnesses examined by the two sides, will make it clear that neither party has come forward with full facts regarding the genesis of this incident and the details thereof. Although both sides have claimed to have been ploughing the plot in dispute when the incident of Marpit (fighting) took place there is nothing in the site plan prepared by the Investigating Officer after inspecting the place of occurrence, to show that any portion of the said plot was found by him to have been actually ploughed. If as contended by the two sides the field was being ploughed since quite some time before the fighting started, a seizeable portion of the plot would have been tilled and the Investigating Officer would have marked such portions having been actually ploughed. Its absence goes to indicate that the incident did not occur in a bid to plough the field by one party or the other, rather it occurred on account of the rival parties claiming entitlement to the said plot having assembled there, the informant party to assert, and the accused party to protect, its possession. Since quite a few of them had gone armed with weapons like lathi, Kanta, Farsa and the like and some on the accused side also with fire arms, when the two sides came face to face, fighting started, in which both the sides caused injuries by blunt and sharp edged weapons to the people on the other side, and those amongst accused armed with fire-arms and also fired shots with the same at the informant party.
41. Under these circumstances while a right of private defence of property against forcible trespass accrued to the accused appellants, no such right accrued to the informant or those accompanying him.
42. It has been contended on behalf of the accused appellants by their learned counsel that the fact of the prosecution version regarding genesis of the incident being not wholly true would entail rejection of the prosecution case in toto, entitling even seven accused appellants to be exonerated of the charge framed against them, secondly the exitence of right of private defence to the accused persons in the circumstances of this case, would extend even to causing death besides cusing hurt to repel the aggression to their property and person.
43. The law, however, is not that in a case where prosecution version regarding genesis of the incident is not proved or is not wholly correct, it will necessarily entail failure of the prosecution. Rather it will be open to the court to accept such part of the version as is established from the facts and circumstances and determine on its basis as to whether any offence is made out and is do, what.
44. The principles in this regard have been laid down by the Supreme Court in Vijayee Singh v. State of U.P., and Makwana Takhat Singh, Ratan Singh v. State of Gujarat .
45. As already discussed above, the evidence on record coupled with the circumstances shows beyond reasonable doubt that there was laid rival claims to the Pandey Wala Plot by the two sides, although the possession at the relevant time was with the accused party. There had also been a series of litigations between the parties about the said i plot. With this background, the members of both the parties fully armed, reached at the said plot to assert their possession, and if necessary to resort to use of force. In such situation when they came to accost each other, fighting ensued, in which lathis Kanta, and Pharsa were used by the participants of i both sides, resulting into injuries by suchi weapons to eight persons including fatal! injuries to Lal Singh on the informant side, and injuries to four amongst accused persons. Those amongst the accused perons armed with fire arms also fired with the same at the! informant party resulting into gun shoti injuries to eight of them.
46. As found above, the accused party was in possession over the plot in question in view of the order of the Sub-divisional Magistrate under Section 145, Cr.P.C. and informant party in spite of there being mutation in favour of Smt. Sukhdei Kunwar, had no right try to forcibly take possession over the same. The accused party, thus was entitled to repel the attempt of the informant party to trespass over the said plot by using necessary forces and causing injuries to achieve the said object. However, in the situation obtaining on the spot, as evident from the material on record consisting of oral testimony, the medical evidence and the circumstances, there could neither be any occasion nor justification for the merciless assault on the members of the informant party, particularly the fatal injuries caused to deceased Lal Singh. The accused persons though relatively lesser in number were better armed in so far as four of its members had fire arms. The theory that any person on the informant side was armed with fire arm, and used the same is not established. The injuiries caused to the persons of the accused party were all simple. Under these circumstances, the exercise of right of private defence by the accused persons extended to causing hurt but not death. As a perusal of the injury reports would show one of the injured on the pro-secution side Ram Adhar was given numerous lathi blows covering his entire back. This thus was a case of merciless beating. To deceased Lal Singh there were caused eight injuries, one of them on the chest was 7 cm x 2.5 cm x chest cavity, sufficient in the ordinary course of nature to cause death. According to the doctor conducting post mortem examination, the death of Lal Singh was a result of his chest injury. The said injury to the deceased Lal Singh having been caused with the knowledge that it was likely to cause death and death being the result thereof, the accused party clearly exceeded in the exercise of right of private defence, either of property or person, and this act would constitute culpable homicide not amounting to murder within the meaning of Part II of Section 304 read with Section 34 of the Indian Penal Code.
47. In Baijnath Mahton v. State of Bihar, the accused, two deceased persons in the case and the material witness belonged to the same village, a piece of land was the subject matter of dispute between one of the accused (appellant No. 1) and the prosecution party. On the day of occurrence, P.W. 3 and his men of the prosecution party were engaged in agricultural operation in that land, while the accused persons came armed with Tangi, Spade and Sticks and started beating them. They attacked the two deceased persons who were working in the field as well as some of the other witnesses. The plea of the accused was that they were in possession of the said plot and on the day of occurrence the two deceased along with others came there two dispossess them and also inflicted injuries on two of the accused persons. As per medical evidence one of the accused was found to have some simple injuries and the other has lacerated wound on the head with slight fracture. The High Court after considering the evidence held that the accused had a right of private defence of property and the persons but ultimately held that they have exceeded the same and convicted the seven accused under Section 304 Part I read with Section 34, I.P.C. Rejecing the argument that the accused cannot be expected to weigh the exercise of right of private defence in golden scales, on the above facts, the Supreme Court confirmed the view taken by the High Court.
48. In Khuddu v. State of U.P., the deceased and P. Ws. were members of a Registered Cooperative Farm, Between the land of the Farm and the land claimed by the accused persons on the strength of allotment by the Gram Panchayat, there was no demarcation. There were strained relations between the members of the Co-operative Farm on the one hand and the accused on the other. Criminal cases under Sections 447, 436 and 379, I.P.C. were initated on the reports of some members and in a Civil Suit filed by the President of the Co-operative Farm ex parte decree had been passed, for setting aside which an application had been moved by the accused persons. On the day of occurrence, the deceased holding a gun and keeping a Rifle nearby, was present with two other persons near the field in which one Nageshar was driving tractor and two workers were clearing the bushes. Just then according to the prosecution, 20 to 25 people including the 11 accused appeared there armed with a Ballam, a Pharsa and Lathis and shouted that the deceased could be killed. They surrounded that the deceased and others and inflicating injuries on them. The deceased fired two shots from his gun due to which two of the accused persons receive injuries. The deceased who received serious injuries fell dead. Both sides lodged report with the police and according to the version of the accused the P.Ws and other injured persons came to the site with many others and tried to take forcible possession of the land from the accused who were in continuous possession, set fire to the huts and also fired shots causing injuries to two of them accused persons. The doctor, who conducted the post mortem found eight injuries most of which were lacerated or contused wounds. On internal examination fracture of skull was found, and death was attributed to shock and haemorrhage due to the skull injuries. The trial court convicted all the 11 accused for offences under Sections 302/149, 307, 436, 323, 147, 148, I.P.C. and the High Court maintained the same. On appeal the Supreme Court has held thus in paras 6 and 7 of the judgment.
6. Admittedly there were civil and criminal proceedings between both the parties. The facts and circumstances go to show that both sides were armed and two of the accused received gun shot injuries. It is not clear from the records that at what point of time the actual attack by the accused took place. If the accused had already dealt several blows on the deceased, he could not have been in a position to shoot at the accused persons. Having regard to the some of the admissions made by the witnesses, it appears that the accused took forcible possession of the land some days ago. Therefore, even assuming that they came into possession after committing trespass, if the deceased and others had gone to the land they cannot be held to be aggressors as pleaded by the defence. In these circumstances, the plea of the accused that they also acted in self-defence cannot altogether be ignored. At any rate their plea also appears to be plausible.
7. However, the accused while exercising the right of self defence have exceeded the same. The medical evidence shows that a number of injuries were inflicted on the deceased and on P.Ws. and also the other workers. In this view of the matter the offence committed by them would be culpable homicide not amounting to murder as Exception 2 to Section 300, I.P.C. is attracated. Accordingly we set aside the conviction, of the appellant under Section 302 read with 149, I.P.C. and the sentence of imprisonment for life awarded thereunder. Instead we convict them under Section 304, Part I, I.P.C. and sentence each of them to undergo seven years R.I. the other conviction and sentences are confirmed. In Chandan Lal v. State of Rajasthan , the occurrence in which two persons died took place in a field which belong to the accused perons. The complaint in disregard of the order passed by the competent court sowed maize in the said field on the date of occurrence. Thereafter on coming to know that the accused had gone on the field the complainant party reached there armed with weapons which resulted in the incident. The trial Judge further found that the accused had both right of private defence of property as well as person. In appeal the High Court reversed the order of acquittal and convicted the accused persons under Section 304 read with Section 34, I.P.C. as they had exceeded their right of private defence. In appeal against the same, the Supreme Court held that in the facts and circumstances of the case and in the nature of injury to the deceased, the accused could utmost have been convicted under Section 304, Part II of I.P.C. Modifying the order of the High Court, the accused appellants were convicted and sentenced under Section 304 II read with Section 34, I.P.C., and sentenced to period already undergone (about 3 months) and to pay a fine of Rs. 3000/-each.
49. The above propositions of law, laid down by the Supreme Court are fully applicable on facts of this case, in which the accused party though possessed of right of private defence of property and person, used much more force than necessary, and even caused fatal injuries to deceased Lal Singh with the knowledge that it was likely to cause death. They thus are liable to be convicted under Section 304, Part II, I.P.C. read with Section 34, I.P.C. and not under Sections 148, 302/149 and 307/149, I.P.C.
50. Accused appellants were in judicial custody for different periods, at the investigation stage, after committal of the case to the court of session, and after conviction till their release in pursuance of the order dated 29-10-1979 passed by this court. The occurrence is of the year 1975. Considering these facts as well as circumstances in which the offence was committed and the nature of charge established, we feel that a sentence of fine Rs. 5000/- each shall meet the ends of justice in this case.
51. We accordingly allow the appeal in part and modify the judgment and order of the trial Court to the effect that instead of sentencing under Sections 148, 302/149 and 307/149, I.P.C. the appellants are convicted under Section 304, Part II read with Section 34, I.P.C. and sentenced to the period already undergone and to pay a fine of Rs. 5000/-each. The amount shall be deposited within two months. In case of default, appellants shall undergo R.I. for a period of three years each. On deposit of fine the bail bonds of the appellant shall stand discharged. Out of the total amount of fine deposited 50% shall be paid to the dependant legal representative of deceased Lal Singh.