JUDGMENT

SARKARIA, J.:— This appeal by special leave by the State of Haryana directed against a judgment, dated January 23, 1974, of the High Court of Punjab and Haryana, arises out of these circumstances :

2. Dayawati, elder daughter of Harbans deceased was married to Rattan Lal, elder brother of Tej Ram, respondent herein. Dayawati was a one-eyed woman and was otherwise not mentally sound. Dayawatis younger sister, Mahindri, aged about 19 years, had separated from her husband, Bhule Gujar, resident of Kamala, District Meerut, and was living with her father, Harbans deceased in village Ankhir.

3. According to the prosecution story, the deceased allowed Rattan Lal accused to take Mahindri as his second wife. Thereupon, Mahindri started living with Rattan Lal accused in village Rithoj which is at a distance of about 20 miles from Ankhir. But the relations of Mahindri with Rattan Lal became strained and the latter started maltreating her about four or five months before the occurrence.

4. Harbans deceased made an application to the Magistrate and got a warrant issued under Section 100 of the Code of Criminal Procedure, alleging that his daughter Mahindri, had been wrongfully confined by Rattan Lal against her will. In execution of that warrant, Mahindri was recovered and allowed to go to her fathers house in village Ankhir. During the four or five months preceding the occurrence, Rattan Lal and his brother, Tej Ram, came several times to the house of the deceased in Ankhir and unsuccessfully attempted to persuade him to send away Mahindri with them. On account of this, the two brothers (accused) were nursing a grudge against the deceased.

5. On the midnight intervening the 15th and 16th of October, 1969, Rattan Lal, armed with a Pharsa (a sharp-edged weapon), and Tej Ram, armed with lathi, came to the house of the deceased. The deceased, his two sons, Mahabir and Rajbir, his daughter, Mahindri, and his wife, Bhagwati, were present in the house. Rattan Lal and Tej Ram awakened and asked the deceased to send Mahindri with them. The deceased did not agree. Mahindri was also not agreeable to go with them. Then Rattan Lal and Tej Ram tried to take away Mahindri by force from the house of the deceased. The deceased intervened. Thereupon, Rattan Lal and Tej Ram made a concerted attack on the deceased, causing no less than 15 injuries, as a result of which, the deceased died at the spot shortly thereafter. When Rattan Lal and Tej Ram tried to drag away Mahindri, her brothers Mahabir and Rajbir intervened, but Tej Ram gave lathi blows to them also. On hearing the hue and cry of the victims, the neighbour, Ranjit Singh, and Chowkidar Khem Chand, who was there on patrol, were attracted to the spot. They witnessed the entire occurrence. The villagers also collected. The miscreants ran away. The villagers did not pursue them on account of fear.

6. After the occurrence, Mahabir accompanied by Khem Chand, went to Police Station, Faridabad and lodged a complaint there on October 16, 1969, at 6.30 a.m. The special report about the murder reached the Illaqa Magistrate on the same day at 12 noon, at Gurgaon.

7. The post mortem examination on the dead body of Harbans deceased was conducted by Dr. S. K. Kalra (P. W. 1) on October 16, 1969. He found 14 injuries on the dead body. It is necessary to set out the particulars of those injuries as they indicate that two types of weapons were used in causing those injuries. The injuries found were as follows :

1. An incised wound 4" x 1/2" on the front of head, placed longitudinally.

2. An incised wound 3" x 1/2" into scalp deep on the head, longitudinally.

3. An incised wound 4" x 3/4" on the left side of the head, placed longitudinally.

4. A contused wound 1" x 1/4" skin deep on the front of the forehead placed longitudinally on the right side.

5. A contusion 1-1/2" x 1/2" on the front of forehead on the left-side.

6. An abraded contusion 2" x 2" on the right shoulder.

7. An abraded contusion on the outer side of the