JAI BHAGWAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) Leave is granted limited to the question of nature of offence committed by the appellants and quantum of sentence therefor.

(2.) The facts giving rise to this appeal, in brief, are as follows: The gravamen of the charge against appellants Nos. 1 and 3, Jai Bhagwan (A-1) and Sushil (A-3), is that they caused the death, by murderous assault, of their uncle Prithvi (hereinafter referred to as 'the deceased') and against appellant No. 2, Anil (A-2), is that he attempted to murder, Wazir Singh (PW-6) on January 21, 1992 at about 7.30 P.M. The dispute between the accused group on one hand and the deceased and his sons on the other which resulted in this unfortunate event relates to four killas of land. The land was owned by the accused and was so declared by the decree of the civil Court in Suit No. 676 of 1984, dated July 17, 1984. The deceased and his brother, Hawa Singh, challenged the validity of the said decree in Civil Suit No. 692 of 1984 which was dismissed by the learned Sub-Judge, 1st Class, Bhiwani vide judgment, Exhibit DX/4 (Decree Sheet, Exhibit DX/5). There is record (Exh. DX/6) to show that the accused were put in possession pursuant to partition of the land by the Assistant Collector and the warrant of possession, though the deceased and his sons were found to have been in possession and cultivation of the said land for the last thirty years. The High Court recorded that the occurrence took place in the land in possession of the appellants. The deceased along with his son Wazir Singh (PW-6), his daughter-in-law, Smt. Krishna (PW-8) and his daughter Smt. Chander (PW-5) went to the land to irrigate the same and told A-1 that he would have the turn of water and irrigate the land and that after settlement of the dispute, A-1 could do it. This was objected to by A-1 who stated that he would settle the matter right then. A-1, then, started hurling abuses at the deceased and during the altercation, Smt. Parwari, mother of A-1, exhorted him to give a blow on the vertex to bring them to senses and under control. Then A-1 who was armed with ballam dealt a blow with it on the head of the deceased. A-3 dealt a blow with Churra (knife) on the face of the deceased. Thereafter, the deceased fell down. While he was lying down, A-2 dealt a blow with gandasi and the others caused several injuries on his body. In the process, PW-5, PW-8 and PW-6 were also injured. A-2 was responsible for injuries on PW-6. They were taken by Hawa Singh (PW-11) to hospital where they were examined by doctors and Prithvi (deceased) was declared dead. On considering the evidence of the eye-witnesses, PWs. 5, 6 and 8, medical evidence of PWs. 1, 2 and 7 and post-mortem report Exh. PA, the trial Court negatived the plea of self-defence, found A-1 and A-3 guilty of offence under Section 302/34 IPC and sentenced them to undergo imprisonment for life and to pay fine of Rs. 2,000/- each, in default of payment of fine, to undergo further rigorous imprisonment of one year and convicted A-2 under Section 307, IPC and sentenced him to rigorous imprisonment for seven years and to pay fine of Rs. 2,000/- in default of fine, he was directed to undergo rigorous imprisonment for one year. It was further directed that out of the fine amount, Rs. 1,000/- be paid to PW-6, injured witness, and the balance of the amount be paid to the widow of the deceased. The appellants preferred appeal against their conviction and sentence in the High Court of Punjab and Haryana. The High Court set aside the conviction and sentence under Sections 302/34, IPC and convicted A-1 and A-3 under Section 304, Part-I read with Section 34, IPC and sentenced them to seven years' rigorous imprisonment and altered the conviction of A-2 to one under Section 326, IPC and sentenced him to rigorous imprisonment for three years; sentence of fine was, however, confirmed by allowing their appeal on January 28, 1998. From that judgment of the High Court this appeal arose.

(3.) Mr. U. R. Lalit, learned senior counsel appearing for the appellants, contended that the appellants were acting in self-defence of their property so they should have been acquitted of the offences charged and that in any event A-1 and A-3 could have been convicted under Section 304 Part-II for their individual overt acts as Section 34 could have no application to this case and that A-2 could not have been convicted under Section 326, IPC. Ms. Shikha Ray Pabbi, learned counsel appearing for the State of Haryana, argued that the accused were not in possession of the land in dispute and that the deceased and his sons had been in possession for more than thirty years and the trial Court recorded the finding that the accused were not in possession of the land; their plea of right of private defence was not accepted by the trial Court; on the facts found they were rightly convicted by the High Court under Section 304, IPC.