Judgment

RUIT PASAYAT, J.-

1. Leave granted.

2. Challenge in this appeal is to the judgment of the learned Single Judge of the Punjab and Haryana High Court dismissing the appeals filed by the appellants. The learned Additional Sessions Judge, Gurgaon had convicted the appellants and one Dharam Singh for the offence punishable under Section 304 Part I read with Section 34 of the Penal Code, 1860 (in short "IPC"). They were also convicted for the offence punishable under Section 325 read with Section 34 IPC as well as Section 323 read with Section 34 IPC. They were sentenced to undergo RI for ten years and to pay a fine of Rs 2000; in default of payment of fine they were directed to undergo RI for six months for the first named offence. They were further sentenced to undergo RI for two years and six months respectively for other two offences. Fine of Rs 500 with default stipulation was imposed. Two other accused persons, namely, Vijay Singh and Rattan Singh were released on probation for a period of two years under Section 4 of the Probation of Offenders Act, 1958 (in short "the Probation Act") in respect of their conviction under Section 323 IPC. Accused Vijay Singh died on 22-5-1992.

3. Accused Raj Pal, Bir Singh and Chhater Pal question their conviction . and sentences imposed.

4. The factual background in a nutshell is as follows: .

The appellants are sons of one Bhanwar Singh, and grandson of one Ariya alias Arimal. The complainant and party are their collateral. Arimal had another son Hira Singh. Sube Singh (hereinafter referred to as "the deceased") and Pirthi Singh (PW 7) are sons of Hira Singh. The said Hira Singh had two more sons, namely, Suraj Bhan and Om Parkash. Sanjay (PW 6) is son of Pirthi Singh (PW 7).

5. The betrothal ceremony of Ajit, son of deceased Sube Singh was to take place on 27-2-1990. On 24-2-1990, Sanjay (PW 6) went to the house of his uncle, the deceased, to help him in making preparations for the occasion. An iron gate fixed in the boundary wall of the house of Sube Singh (the deceased) had got dislocated. They were refixing it by applying cement. The time was about 10 a.m. The appellants - Raj Pal, Bir Singh, Chhatter Pal and Dharam Singh (since deceased) came there armed with lathis and jellies.

They desisted San jay and the deceased from repairing the gate asserting that they also had a share in the property. The deceased told them that they had no right over the property and they had got their property in the partition. The appellants and Dharam Singh abused the deceased. In a fit of anger, Raj Pal gave a lathi-blow on the head of the deceased. Chhatter Pal also gave a lathiblow on his head. Bir Singh gave a jelli-blow on the left leg of the deceased. Sanjay (PW 6) intervened to rescue the deceased. Bir Singh gave a jelli-blow on the right wrist of Sanjay; Dharam Singh gave a lathi-blow on the left hip of Sanjay. Thereafter, Rattan Singh and Vijay Singh, the appellants also came there armed with jelli and lathi respectively and joined the fray. Vijay Singh gave a lathi-blow on the right side of the jaw of Sanjay and Rattan Singh gave jelli-blow on his right thigh. Pirthi Singh (PW 7), father of Sanjay along with Randhir Singh, cousin of Sanjay came there on hearing the alarm raised by Sanjay. Raj Pal gave a lathi-blow on the head of Pirthi Singh (PW 7); Chhatter Pal gave a lathi-blow on his right shoulder. Bir Singh gave a jelliblow on the head of Randhir Singh. Tej Pal and Mahender Singh arrived at the place of occurrence and rescued the victims from the attack of the accused persons. The injured persons were taken to the hospital. The deceased breathed his last on 25-2-1990 at about 8.40 p.m. at Safdarjung Hospital.

6. After completion of investigation, charge-sheet was filed. As the accused persons pleaded innocence and denied the charges, trial was held.

7. Fifteen witnesses were examined. The statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, 1973 (in sho