GIAN CHAND Vs. STATE OF H P

JUDGEMENT

(1.) Vide his judgment dated 15-11-1978 recorded in Sessions case No. 8178 of his fib. the Additional Sessions Judge, Kangra at Dharamsala, convicted Gian Chand, appellant No. 1, for the offences under section 30- Part-i and section 447 I.P.C. and the other three appellants under section 417 I P.C. Later vide his order of even date, he sentenced appellant No. 1 to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5,000/- for the offence under Section 304 Part, I P.C. and to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000- for the offence under section 447 I.P.C. In case of default in paying the fine, this appellant was directed to undergo further RI for one year and three months respectively. The other three appellants were, however, allowed the benefit of section 4 of the Probation of Offenders Act and released on their furnishing personal bond in the sum of Rs. 5000/. each with one surety in the like amount undertaking to be of good behaviour and keep peace for a period of three years or else to receive sentence when called upon from the said authority. Feeling aggrieved, the appellants have approached this Court in appeal.

(2.) Gian Chand, appellant No. 1, who is about 40 years is the son of Milkhi Ram, appellant No.2 who is aged about 80 years Joginder appellant No, 3 who is a young boy of about 16 years is the son of Gian Chand appellant No. 1 while Smt. Kanso, appellant No.4 is the wife of Joginder Singh, appellant No.3. All these appellants are thus members of the same family. Gian Chand, appellant No. 1, was charged under section 302 I.P.C. for having committed the murder of Gorkhi Ram of village Sansarpur on 13-6-1978. He was also charged for the offence under Section 447 I.P.C. for having committed criminal trespass in the land comprised in katha-kahani No.2 min/27 khasra No. 118, situate in mauza Sansarpur which was then in possession of Gorkhi Ram deceased. The other three appellants were charged for the offences under Section 302 read with Section 34 I.P.C. and section 447 I.P.C. The case of the prosecution led, to there chare being framed against the appellants was that Gorkhi Ram deceased had purchased some land measuring 25 kanals and 1 marIa from one Rulia Ram about a year prior to the occurrence which took place on 13-6-1978. After such purchase; Gorkhi Ram deceased along with his sons Onkar Singh (PW-6) and Waryam Singh (PW-9), had cultivated two crops in this land before the occurrence. On 13-6-1978, the date of occurrence, Gorkhi Ram deceased accompanied by his two sons, above named, went to his Iaad which he had purchased from Rulia Ram for ploughing the same. After they had ploughed about one kanal of land, Wary am Singh PW went to a nearby place to case himself. Onkar Singh PW, was asked by his father Gorkhi Ram to throwaway the thorny bushes which were lying in the adjacent filed. As Onkar Singh started collecting the thorny bushes from that field for throwing them away, the appellants who were at that time constructing their juggis near that field, objected to the removal of such thorny bushes by PW Onkar Singh on the pretext that the same were lying in the field which was under their cultivation. Onkar Singh, however inspite of this objection, picked up these thorny bushes and went to throw the same away. In the meanwhile, appellant No.2 to 4 came from their juggis and caught held of Gorkhi Ram deceased. Gian Chand, appellant No. 1, then picked up a kcissi from the place where he was working for construction of juggi and rushed to the place where Gorkhi Ram had been caught. He gave two blows on the head of Gorkhi Ram with that kassi; In the meanwhile both the sons of Gorkhi Ram came rushing. One of them namely, Onkar Singh picked up a khunda ling in the filed and threw it with force towards the accused persons. This khunda struck on the head of Gian Chand, appellant No. 1. Thereafter the appellants ran away towards their juggis. Gorkhi Ram fell down unconscious after receiving the kassi blows on his head. His sons and other persons collected at the spot and tried to revive his conscious by giving him water and milk. Gorkhi Ram, however, could not take either water or milk arid vomitted out the same. He was the taken to Canal Hospital, Talwara, in an ambulance. The authorities of Canal Hospital, Talwara, did not admit the deceased on the pretext t- the occurrence having taken place in Himachal Pradesh, the injured person should be taken to the Doctor at Sansarpur and it would be only on a reference made by that Doctor that Talwara Hospital could attend to the injured person. Gorkhi Ram was accordingly taken to Sansarpur and after he was referred from Sansarpur dispensary, he was again taken on Canal Hospital, Talwara, where he was admitted. Ultimately he succumbed to his injuries on 18-6- 1978.

(3.) The defence of the appellants was that, he land measuring 25 kanals 1 marIa which Gorkhi Ram deceased claimed to have purchased, was in their cultivating possession as tenants under its owner Rulia Ram. They also had their residential juggis in a part of this land. According to the further version of the appellants, Gian Chand appellant No. 1, was busy in reporting the roof of his juggi when at about 50c 5.30 a.m. on the day of occurrence, Gorkhi Ram deceased accompanied by his two sons, PW5 Onkar and Waryam Singh came there and attacked him. Onkar Singh PW had sickle in his hand with which he caused injury on the head of this appellant as a result of which he became unconscious. The other appellants were not present at the time of the occurrence.