RAM MANORATH Vs. STATE

JUDGEMENT

(1.) THIS appeal has been filed by Ram Manorath, Sheo Kumar Singh and Bhawani Prasad against their conviction and sentences Under Section 304/34, Indian Penal Code. Each of them has been sentenced to rigorous imprisonment for three years under the above count by the Sessions Judge, Faizabad.

(2.) THE prosecution came to the court with the story that there was a Mahwa tree three or four furlongs to the south of village Reona on Banjar land belonging to Bhagwan Bux Singh complainant. There was another Mahwa tree about 300 paces to the north-west of the village belonging to appellant Bhawani Prasaa. There were consolidation proceedings in the village about four years before the present occurrence in which the land on which Mahwa tree of Bhagwan Bux Singh stood was included in the Chak of Bhawani Prasad appellant and was allotted to him and the land on which- the Mahwa tree of Bhawani Prasad stood was included in the Chak of Bhagwan Bux Singh and was allotted to him. The consolidation authorities, however, left the said trees unallotted and their ownership continued as before even after the consolidation proceedings, with the result that complainant Bhagwan Bux Singh continued to own and be in possession of the Mahwa tree in dispute which led to the present occurrence and appellant Bhawani Prasad continued to own and be in possession of the other Mahwa tree which stood on the land allotted to Bhagwan Bux Singh. According to the prosecution case about a fortnight before the occurrence there was a panchayat in village Reona having been summoned by Bhagwan Bux Singh and the Panchayat decided that Bhagwan Bux Singh and Bhawani Prasad could cut away tneir respective Mahwa trees standing on the land of each other. On 6-51968 at about 5 A. M. Bhagwan Bux Singh and Kariya started cutting the Mahwa tree which was standing in the Chak of Bhawani Prasad appellant and which Bhagwan Bux Singh believed to belong to him. At about 6-30 A. M. Ram Manorath and Sheo Kumar Singh appellants who are brothers, Bhawani Prasad, who is related to them and Dan Bahadur co-accused came there each armed with a spear. They abused and assaulted Karya deceased and Bhagwan Bux Singh. Ramdeo and Raja Ram witnesses who came and intervened were also assaulted and injured by them. Bhagwan Bux Singh complainant carried a lathi and struck it at the spear of Dan Bahadur Singh which caused the spear-head to break down. Karya succumbed to the injuries received by him. The first report of the incident was lodged by Bhagwan Bus; Singh. The injuries of Karya had been examined by Dr. Vijaipal (P. W. 13) at 1-30 P. M. on 6-5-1968 before he succumbed to them and he noted the following seven in juries on his person:

(3.) THE appellants had pleaded not guilty to the charges framed against them and had pleaded that the injuries were caused in exercise of the right of private defence of body and property, their case being that the Mahwa tree in dispute belonged to Bhawani Prasad and that Karya and Bhagwan Bux Singh were cutting it in spite of protest by Bhawani Prasad. The trial Judge found that the disputed Mahwa tree belonged to Bhawani Prasad appellant and did not belong to Bhagwan Bux Singh. He further found that the appellants were entitled to exercise the right of private defence of property when Karya and Bhagwan Bux Singh were engaged in cutting it down but held them guilty of culpable homicide not amounting to murder with the aid of Section 34, Indian Penal Code as in his judgment the appellants had exceeded the right of private defence of person and property in causing the death of Karya.