NAIN SINGH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The appellants in Criminal Appeal No. 251 of 1990 were accused 3 and 4 before the trial court, namely, the VII additional Sessions Judge, Meerut; whereas the appellants in Criminal appeal No. 307 of 1990 were accused 1 and 2 before the said court. These four appellants along with one Braham Singh (since acquitted) took their trial for offences under S. 302 read with S. 149 IPC and S. 323 read with S. 149 IPC. Besides, these four appellants were also charged for offence under S. 147 Indian Penal Code whilst Braham singh under S. 148 IPC. The trial court, on appreciation of the evidence adduced by the prosecution, found accused 5, Braham Singh not guilty of any of the charges and acquitted him. However, these four appellants were found guilty of offences under S. 302 read with section 34 Indian Penal Code and under S. 323 read with S. 34 Indian Penal Code and sentenced to undergo imprisonment for life and to six months' rigorous imprisonment respectively. The High court on appeal preferred by all the appellants, for the reasons mentioned in its judgment, held that the prosecution has not made out a case punishable under S. 302 read with S. 34 Indian Penal Code but only under S. 304, Part II, Indian Penal Code read with section 34 and consequently set aside the conviction and the sentence imposed for the offence under S. 302 read with S. 34 Indian Penal Code and instead convicted them under S. 304 Part II, read with S. 34 ipc and sentenced each of them to undergo rigorous imprisonment for a period of five years. The conviction of all the appellants under Section 323 read with S. 149 Indian Penal Code was altered into one under S. 323 read with S. 34 Indian Penal Code and the sentence of six months' rigorous imprisonment was retained. The facts of the case which have given rise to the present appeals as unfolded by the evidence, can be briefly stated thus:

(2.) Pws 1 and 5 are the brother and wife respectively of one Ball (the deceased herein). Public Witness 1 and the deceased Ball had a common 'chak'. The appellants belonged to a village named Kaulbhandora, which is at a distance of about four furlongs from the Chak, situated just adjacent tothe road and 'rajbaha'. The appellants used to take the 'rajbaha' Patri in auction for grazing their cattle. It seems that there was strained relationship between the appellants and the deceased for a considerable length of time. According to the prosecution the cattle belonging to the appellants, when allowed to enter the 'patri' (grazing field) used to stray into the field of Bali and cause damage to the standing crops. Although ball made a protest, it did not yield any result. On account of this, there was simmering feeling between the parties. Added to that, there were certain criminal prosecutions between the parties, pending for over a period of two years.

(3.) On 23/12/1976 at about I p. m. when Bali along with PWs i and 5 was in his field, these appellants each armed with a lathi along with Braham Singh armed with a 'ballam' came there. On the exhortation of Chandroo, all other appellants and Braham Singh attacked Bali with their respective weapons and caused injuries to him. While Public Witness 3 tried to save her husband, she too was injured. When Public Witness 1 along with PWs 3 and 4 rushed to the scene of occurrence, the assailants took to their heels. Injured Bali was removed to the Hastinapur hospital for treatment. Public Witness 6, the medical officer attached to the said hospital examined bali and found on his person as many as Fifteen injuries of which Injury no. 15 was a stab wound and most of the other injuries were contusions. PW 6 prepared a medical report, Ex. Ka-6 and on the same day he examined Public Witness 5 and found on her person 2 contusions in respect of which he prepared the injury report (Ex. Ka-7. However, Bali succumbed to his injuries on the same day at about 7.45 p. m. Public Witness 1 lodged a written report (Ex. Ka-1 at about 8 p. m. before Public Witness 2 a Head Constable attached to the Hastinapur Police Station. Public Witness 2 prepared Ex. Ka-2 on the basis of ex. Ka-1 and made G. O. entry i. e. Ex. Ka-3. Public Witness 9, the then sub-inspector of Police attached to the police station took up the investigation and examined Public Witness 1 and others. He held the inquest over the dead body of the deceased and prepared Ex. Ka-1 1. Public Witness 5 could not make any statement as she was unconscious. Then Public Witness 9 inspected the spot and prepared a site plan Ex. Ka-14 and seized certain material objects including a piece of wood and blood stained earth.