SUBHASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Whereas, appellants Subhash son of Moti Ram and Tek Chand son of Ram Nath have been held guilty of having caused the death of one Chamel Singh and for that reason ordered to be imprisoned for life as also to undergo RI for six months under Section 148 of the Penal Code as also to undergo R. I. for six months under Section 323 read with Section 149, IPC, other appellants, Chandi. Om Parkash and Dharam Pal have been held not a party to the murder of Chamel Singh but they have been held guilty under other offences and let off on probation vide judgement recorded by the learned Additional Sessions Judge, Kaithal, dated May 13/19, 1993. It is against this judgement off the learned Addl. Sessions Judge that the present appeal has been filed by Subhash and other appellants, mentioned above.

(2.) The solitary contention of learned counsel for the appellants, Mr. R. S. Cheema, Sr. Advocate, is that Subhash and Tekko Chand had acted in their right of defence of person in which they had not exceeded as well and, therefore, they deserve to be acquitted by setting aside the judgement of conviction and sentence recorded by tire learned Addl. Sessions Judge, kaithal, against them. Before, however, the sole contention of the learned counsel is examined, it shall be useful to give brief resume of the facts leading to death of Chamel Singh.

(3.) Krishan Chand, himself injured in the occurrence, reported the matter to the police when he got his statement, Ex. PQ, recorded on Sept 8, 1987 at about 2.30 a.m. to ASI Surjit Singh PW 12, on the basis of which formal FIR, Ex. PQ/2, came into being at 3.15 a.m. on the same day. He stated that they were five brothers and all the brothers were having joint cultivation. His father Chamel Singh has three brothers. The total duration of their turn of canal water was 30 hours, out of which 71/2 hours were allotted to their turn in the last to avail canal water. The other co-sharers were giving them their turn of water of 71/2 hours in the last and, therefore, sometimes they were unable to avail their turn of water. On the night of date of occurrence, water in canal was to be supplied and they had to avail their turn first on account of having not taken the same previously. Chandi Ram son of Moti Ram, his father's elder brother, (TAU) told them that they would take turn of water first, on account of which an alteration took place between them at about 6 p.m. but they were separated at that time. He disclosed that incident to his father Chamel Singh and he along with his elder brother Roashan, younger brother Ishwar and his father was going to the police station to lodge a report. At about 7.30 p.m. when they reached in front of the GATWAR of his father's elder brother (TAU), Moti Ram, Dharam Pal Chandi Ram and Om Prakash sons of Moti Ram, armed with lathis, Subhash Chand son of Moti Ram, armed with a Gandasi, Tek Chand son of Ram Nath, armed with a Gandasi came out of their GATWAR at once and surrounded them. Chandi Ram said that they would teach them a lesson for going to the police station. Tek Chand first of all gave a gandasi blow with its reverse side to his father Chamel Singh which hit him on the right side of his head. Then, Subhash gave two blows with gandasi with its reverse side which hit him on the middle of head and the left side of head. Dharam Pal gave a lathi blow to his father which hit him on his left arm. His father Chamel Singh fell down on the ground. When he stepped ahead to rescue his father, Chandi Ram gave two blows with lathi to him which hit on his head. Om Prakash gave three blows with lathi, which hit him on his back. He raised his left hand in his defence and sustained injury on his left thumb. He fell down on the ground as a result of sustaining injuries. Chandi Ram gave blows with lathis on both of his knees and Om Prakash gave lathi blows on his forehead, nose and near the left eye while he was lying down. The iron blade fitted with the lathi hit him below the left eye. When both of his brothers, Roashan Lal and Ishwar Singh proceeded ahead in order to rescue Them, Om Prakash, Tek Chand, Subhash and Dharam Pal also inflicted injuries with lathis and gandasis. During the dispute, their cosharer Ram Chander had reached the spot and he witnessed the entire occurrence. His father Chamel Singh became unconscious at the spot. They took care of him. All the five accused, having connived with one another, had caused injuries with lathis and gandasis to him, his father Chamel Singh and brothers, Ishwar Singh and Roshan Lal. He his father Chamel Singh and brothers were admitted in Civil Hospital, Kaul in injured condition. His father had received grievous injuries and was referred to the Civil Hospital, Kurukshetra for treatment. Many persons of the village had come at the spot on hearing their noise. On seeing the people who had assembled there, accused persons fled away towards their house together with their respective weapons. They had also inflicted injuries to Subhash and Chandi Ram in their defence.