HORI LAL Vs. STATE OF U P

JUDGEMENT

(1.) SARVASRI Bhola Nath, Momal Prasad, Chhotey Lal, Kallu Ram and Mangli were real brothers and resident in village Dhankuni in the district of Pilibhit. Bhola Nath possessed about 18 bighas of agricultural land. He died leaving his only son Chheda Lal as his heir when Chheda Lal was a minor aged about 12 years. Chheda Lal was mentally infirm. Chhotey Lal his uncle looked after his person . and property including the agricultural land as his guardian after the death of his father and had cultivated sugar cane crop in a chak of six bighas in the year 1976. Chheda Lal separated himself from the guardianship of Chhotey Lal a few days before the occurrence of this case and began to reside with his first cousin Jiwan Lal (PW 5) son of Kallu Ram. Narain (PW 1) is also a first cousin of Chheda Lal being the son of Komal Prasad deceased. Narain (PW 1) and Jiwan Lal (PW 5) were cutting the aforesaid sugar cane crop on 21st of March 1976. Chheda Lal was also present there. The accused appellant Hori Lal aged about 22 years armed with a Kassi reached there along with his father Chhotey Lal at about 9 A. M. Chhotey Lal was armed with a lathi. Both began to abuse Narain (PW 1) and Jiwan Lal (PW 5) and assaulted them causing two lacerated wounds to each. Thereafter Hori Lal and his father left the place. Narain (PW 1) and Jiwan Lal (PW 5) reached their home after about 15 minutes of this occurrence and there again Hori Lal appellant and Chhotey Lal attacked them. Narain (PW 1) was armed with a Danda. He began to ply the Danda causing injury to Chhotey Lal, just then Komal Prasad the father of Narain (PW 1) reached there to save him. Hori Lal dealt a lathi blow on his head. He fell down and became unconscious. Narain carried his father to the Police Station and lodged FIR there at 12.10 P. M. on the same date. Komal Prasad was examined by Dr. A. Kumar, Medical Officer, Primary Health Centre Neoria at 4' P. M. and found one lacerated wound 4 cm x 1 cm x 1.5 , cm on the left side of head 8 cm above the left ear. Komal Prasad succumbed to the injuries on the same night at 11.30 P. M. in the District Hospital Pilibhit. Hari Ram Sharma (PW 6) investigated the case and submitted charge-sheet against Chhotey Lal and Hori Lal. The prosecution examined Narain (PW 1), Pope Ram (PW 4) and Jiwan Lal (PW 5) as witnesses of fact over and above five other witnesses. The learned Sessions Judge, on a consideration of entire evidence arrived at the conclusion that the accused did not commit any offence by causing injuries to Narain (PW 1) and Jiwan Lal (PW 5) at the sugar cane crop field. He however arrived at the conclusion that the occurrence which took place subsequently at the house of the accused was a free fight among four persons, with the two accused on one side and the two PWs. nos. 1 and 5 on the other side and in that fight the accused Hori Lal appellant caused fatal injury to Komal Prassd and thereby committed an offence punishable under section 304 IPC. He has, therefore, acquitted Chhotey La! but convicted the accused appellant Hori Lal under section 304 IPC and. sentenced him to undergo R. I. for a period of seven years. He has felt aggrieved and come up in appeal.

(2.) I have heard learned counsel for both the parties and have gone through the evidence on record with care.

(3.) AS I have observed above the accused Chhotey Lal and Hori Lal did not receive any injury in the first incident which took place at the sugarcane crop field. Only PWs 1 and 5 received lacerated rounds in the first incident. The evidence on the record shows that in the second, incident Chhotey Lal accused received one lacerated wound 5 cm x 0.5 cm x 0.5 cm, 7 cm above right ear and this injury was admittedly caused by Narain (PW 1.). The evidence further shows that Hori Lal accused appellant also received two injuries in the second incident. The fact that in the second incident Narain and Jiwan Lal did not receive any injury whereas Chhotey Lal and Hori Lal did receive injuries, makes the prosecution story improbable that Hori Lal and Chhotey Lal were -aggressors in the second incident. Moreover there was no occasion for the accused to have been aggressors at their own house because in the first incident they did not receive any injury, though they had caused injuries to Narain and Jiwan Lal. It is proved beyond doubt that the second incident took place at the residence of the accused in which the accused received injuries. In all probabilities had the accused been aggressors they would certainly have caused a few injuries to Narain and Jiwan Lal in the second incident also. Where an occurrence takes place at the residence of the accused and inside their house in which only the accused receives injuries, it is impossible to believe that they were the aggressors or that it was a case of free fight. The accused were at their own residence when Narain and Jiwan Lal reached there and caused injuries to them. They had no option but to defend themselves. No case of free fight is made out from the evidence on the record and the finding of the court below that it was a case of free fight at the residence of the accused is incorrect. The only possible conclusion which can be drawn from the evidence on record is that Narain PW 1 and Jiwan Lal PW 5 were aggressors and wanted to take revenge of the first incident in which they received injuries.