HIRALAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 31.12.1985 delivered by the Third Additional Sessions Judge, Dhar in Sessions Trial No.160/84 thereby convicting the respondents Hiralal and Narayan under section 302/34 of the Indian Penal Code and sentencing each of them to suffer imprisonment for life and to pay a fine of Rs. 100/ - convicting the appellant Hiralal under section 307 of the Indian Penal Code and the appellant Narayan under section 307/34 of the India Penal Code and sentencing each of them to suffer rigourous imprisonment for seven years and to pay a fine of Rs. 100/ - each; convicting the appellants Hiralal and Narayan under section 326/34 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for five years and to pay a fine of Rs. 100/ - each; convicting the appellants Onkarlal and Shantabai under section 323 of the Indian Penal Code and sentencing them to pay a fine of Rs. 500/ - each and in default to suffer simple imprisonment for four months. Each of the appellants was further sentenced to suffer imprisonment for six months in default of payment of fine as imposed above. The substantive sentences were directed to run concurrently.

(2.) THE facts in brief are that the appellants went to sow the agricultural field known as 'Kanchla field', which was in possession of the deceased Tulsiram, at 3.30 P.M. on 3.7.84. Mohanlal (PW 1), the brother of the deceased, Kailash (PW -2) the son of PW -1, Shanker lal (PW -3) the son of the deceased, Kailash (PW -2) the son of PW -1, Shanker lal (PW -3) - the son of the deceased were doing agricultural opearations in their field situated near the aforesaid disputed field and saw the appellant going to trespass in the aforesaid field for the purpose of sowing it. Ayodhyabai (PW -4) was present in another field nearby. The appellant Onkarlal was armed with lathi, Hiralal armed with Farsa, Naryan was armed with axe and Shantabai was armed with a lathi. They mounted attack on the deceased Tulsiram as soon as he reached the aforesaid field. Mohanlal tried to intervene, but he too was assaulted. Shanker also made efforts to intervene, but he too was assaulted. The appellants also sustained injuries. Tulsiram succumbed to the injuries in this incident. The incident was witnessed by Mangilal (PW -12), Dayaram (PW -13), Ayodhyabai (PW -4), Ramchandra and Radheshyam (not examined in this case). The cause behind this quarrel was that the appellant Onkarlal had spent a sum of Rs. 7,000/ - in the performance of the religious rites of his mother in lieu of which he intended to take half portion of the disputed land owned by his deceased mother. According to the prosecution, this piece of land at the relevant times was in possession of the deceased Tulsiram. The report of the incident was lodged by Mohanlal (PW -1) which is marked in this case as Ex. P/27. The postmortem was performed and the report of postmortem report is Ex. P/12. Mohanlal, Kailash and Shankarlal were also medically examined and the injury reports are respectively Ex. P/3, P/4 and Ex. P/5. Ex. P/25 is the X -ray report of Kailash and Ex. P/25 -A is the X -Ray plate. Ex. P/26 is the X -Ray report of Mohan and Ex. P/26 -A is the X -Ray plate. The First Information Report Ex. P/29 was lodged by PW -1 Mohanlal. The weapons of assault were seized pursuant to the information furnished under section 27 of the Evidence Act and certain other articles were also seized. Articles were submitted for Chemical Examination. The reports are Ex. P/32 and Ex. P/34. According to the defence, the appellants also sustained injuries in the same incident. Ex. D/1 is the injury report of the appellant Onkar and Ex. D/5 is the X -Ray report and Ex. D/5 -A is the X -ray plate. Ex. D/2, D/3 and Ex. D/4 are the injury reports respectively of the appellants Santibai, Ramnarayan and Hiralal. Ex. D/6 is the report of this incident submitted by the appellant Hiralal on which no case was registered by the Police. The spot -maps Ex. P/6 and Ex. P/10 were also prepared. After completion of investigation, the challan was filed. The appellants were charged under sections 302/34, 307/34 (with reference to Mohan), under section 307/34 (with reference to Kailash and under section 323/34 of the Indian Penal Code (with reference to Shantibai) to which they pleaded not guilty. On trial, they were convicted and sentenced as above.

(3.) SHRI Garg submitted that the Trial Court has committed an error of law in lightly brushing aside the injuries sustained by the appellant in the course of the same incident despite the fact that the injuries were not superficial. According to him non -explanation of the injuries was by itself sufficient to discard the prosecution story on suppression of the genesis of the occurrence. He further urged that the investigation is tained and unfair because the case on the basis of the report lodged by the appellant was not even registered and no investigation was directed to ascertain the truth of the case. He submitted that the complainant party had formed an unlawful assembly to dispossess the appellants from the possession of the disputed land and the appellants in that context had every right to defend the property as well as their own bodies. He, therefore, urged that the conviction as recorded deserves to be quashed. On the other hand Shri Chauhan submitted that there is no infirmity either in approach or in conclusion reached by the Trial Court and if it is found that the appellants had the right of defence as claimed by them, then they have clearly exceeded that right. Shri Chauhan, thus, urged that the appellants deserve to be suitably punished.