KOJHA MASIH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE accused-appellants have preferred this appeal against their conviction and sentence under dection 302, read with Section 34, I.P.C. The incident of assault on Waris Masih and Tara Masih took place at about 3.30 p.m. on 12.9.1989. The deceased Waris Masih along with his brothers Kashmir Masih (complainant), Tara Masih and Surjit Masih was proceeding towards the tubewell of their land. While they approached near their land, accused Lal Masih (since acquitted) gave a challenge that these persons should be done to death. Lal Masih was then armed with Khurpa (sickle). On the above call given by Lal Masih, the accused Kojha Masih and accused Chhinda Masih (the present appellants), both armed with gandasis (weapons like butcher's big knife) charged towards these four persons mentioned above. Thereupon, these four brothers, who were without any arm, started running away from the spot. While running away, the deceased Waris Masih stumbled and fell down. These accused then arrived near him. Accused Kojha gave gandasi blow on the back of the neck of Waris Masih. It was followed by two blows with gandasi by accused Chhinda Masih on the back of the neck of Wari Masih. On seeing that Waris Masih was being attacked, his three brothers mentioned above stepped back to his rescue. Thereupon both these accused had also attacked Tara Masih and caused injuries with their respective weapons. Shouts were raised by these persons. As a result of that, all the accused fled away. The motive for commission of offence is said to be a dispute over the turn of water for irrigating the lands from common water-course. Soon after the incident, arrangement was made for a vehicle. The injured were then taken in a bullock-cart and were brought to the Civil Hospital, Ramdas. On arrival at Civil Hospital, the doctor examined Waris Masih and declared him dead. The other injured Tara Masih was also examined. At a later stage, I will refer in detail the injuries of these persons.

(2.) KASHMIR Masih, who was also an eye-witness to the incident, gave the report which was recorded as F.I.R. at Police Station, Ramdas on 12.9.1989 itself at about 5.15 p.m. and was registered at the same police station at about 5.45 p.m. The special report of the F.I.R. was received by the Judicial Magistrate 1st Class, Ajnala at 7.30, p.m. on 12.9.1989. The investigation had thus commenced. In the course of the investigation, police then prepared inquest report on deadbody of Waris Masih and sent the deadbody for autopsy. According to the doctor, Waris Masib died on account of shock and haemorrhage, as a result of injury to the skull. The accused were also apprehended. At the instance of the accused-appellants, a gandasi by each of them was recovered as per Section 27 of the Evidence Act. The gandasi was sent to the Chemical Analyser. Though the blood was detected on both these gandasis the origin of the blood on one gandasi could not be determined, whereas in respect of the other gandasi blood was found to be human, but the blood group of it could not be ascertained.

(3.) THE Additional Sessions Judge, Amritsar, held both the appellants guilty of the charge under section 302, read with Section 34 I.P.C. He, however, acquitted the accused Lal Masih who had not taken part in the actual assault, but he is said to have simply raised the lalkara (call) to do away with the deceased and his brothers who were then approaching towards their land.