Order
1. The appellants in these appeals were tried along with other seven accused persons for the offence punishable under Section 302 IPC read with Section 149 IPC and Sections 323, 324 read with Section 149 IPC. The learned Sessions Judge acquitted six persons and found guilty four accused persons of the offence punishable under Section 302 IPC read with Section 34 IPC and also the offences under Sections 323 and 325 IPC read with Section 149 IPC. Out of the four accused persons Kok Singh filed Crl. A. No. 785 of 2003 and Jeet Singh and Pratap Singh filed Crl. A. No. 283 of 2003. Accused, Diwan Singh whose conviction for the offence under Sections 302/34 IPC was upheld by the High Court has not filed any appeal.
2. We have heard the learned counsel for the appellants and the learned counsel for the respondent State.
3. The prosecution case is that on 26-1-1984, in the morning PW 1, Har Charan along with his brother, Chhiddi and Ram Het, son of Chhiddi went to Jorewala kuan (well) for the purpose of taking water from it to irrigate their fields. When they started installing the pump the accused persons came there and told that they shall not take water through the canal as it was constructed by them. It seems that there was an altercation between these two groups. Har Charan, Chhiddi and his son were about to leave the place after taking the pump from the place of occurrence when the accused persons started attacking Har Charan and Chhiddi. On seeing his father being attacked Ram Het intervened and he was attacked by Diwan Singh with a farsa. It is alleged that the appellants herein joined the attack and caused extensive injuries on Ram Het. PW 17, after seeing the incident went to the police station and gave information. The Sub-Inspector of Police came to the place of occurrence and assessed the situation and thereafter recorded the statement of PW 1 and registered the case.
4. PW 25 conducted the investigation. The injured Ram Het while undergoing treatment in the hospital died on 29-1-1984. His post-mortem certificate shows that he had, as many as, 15 injuries on his body. Injuries 1 to 4 are serious in nature. Injury 1 was on the head at left parietal part, Injury 2 on the right side of head at parietal part, Injury 3 was near the left ear and the fourth injury was on the upper part of the neck.
5. On the side of the prosecution PWs 1 to 25 are examined. PWs 1 and 2 are the main eyewitnesses who supported the prosecution. This Court while admitting the appeals on 21-2-2003 and 8-7-2003 specifically mentioned that the leave was granted limited to the question of nature of offence. The counsel for the appellant urged before us, that the High Court seriously erred in convicting these appellants for the offence under Section 302 IPC with aid of Section 34 IPC. It is submitted that Har Charan, Chhiddi and his son came to the place of occurrence with the intention of forcibly taking water from the well and that was the main reason for the quarrel and as the occurrence took place in the field of these appellants as it is proved by the presence of bloodstains in the fields of these appellants, it is argued that the accused were not aggressors. It is also pointed out that Jeet Singh and another co-accused Laxman Singh sustained injuries in this incident and this shows that Har Charan and his companions were also armed with weapons. It was further contended that there was no common intention to commit the murder of deceased Ram Het and if at all, the accused should have been found guilty for their individual acts.
6. Learned counsel for the State pointed out various circumstances to show that these appellants along with other persons caused injuries to Har Charan and Ram Het. It is pointed out that these appellants encircled Ram Het and jointly caused injuries to him. It is pointed out that these appellants have caused injuries by lathis and Ram Het sustained injuries of farsa at the hands of Diwan Singh. On these premises it was argued that the judgment of the High Court is sustainable in law.
7. It may be true that there was dispute regarding taking of water from the well. From the surroundings circumstances it appears that Har Charan, Chhiddi and deceased Ram Het went to the well for the purpose of taking water. It is quite possible that the accused were there for doing agricultural operations and dispute must have arisen all of a sudden. Har Charan and Chhiddi were attacked first and on seeing that his father was being attacked Ram Het intervened and then he was attacked by Diwan Singh and the present appellants. The prosecution evidence shows that the serious injuries sustained by the deceased Ram Het must have been caused by a farsa and according to the prosecution evidence Diwan Singh was armed with a farsa. All other injuries must have been caused by lathis and these persons were armed with lathis. As the dispute started while taking water from the well, it is not possible to assume that all these appellants had a common intention to cause the death of deceased Ram Het. Going by the facts and circumstances, we are of the view that the conviction of these appellants for the offence under Section 302 read with Section 34 is not sustainable. At the most the appellants could have been convicted only for the offence for causing grievous hurt to Ram Het.
8. Having regard to these facts, we think that the offence committed by these appellants does not come under Sections 302/34, however, we find these appellants guilty of the offence punishable under Sections 326/34 and sentence them to undergo rigorous imprisonment for a period of five years. They shall undergo the remaining period of the sentence. We are not interfering with the conviction of these appellants on other counts and directions to undergo imprisonment concurrently is maintained. The appeals are allowed to the extent indicated above.