IMPORTANT POINT
Exception 2 to section 300 IPC discussed.

JUDGMENT

R.M. Lodha, J.—

Eight persons were sent up for trial to the Sessions Judge, Sonepat for the offences under Section 148, 302, 324 and 323 read with Section 149 IPC. The trial Court convicted four among them and acquitted the other four accused; one of the acquitted accused had died during the trial. The convicted persons were sentenced under Section 302 read with 34 IPC to the life imprisonment and varying period of imprisonments under other offences; fine with default stipulation was also imposed. All the four convicted persons filed appeal before the High Court of Punjab and Haryana. The High Court by its judgment dated November 30, 2005 affirmed the conviction and sentence imposed by the trial court. This appeal by special leave is preferred by these four convicted persons.

2. The prosecution version is this: on September 26, 1990, Suresh (PW-12) took his buffaloes to Delhi Canal. The buffaloes entered into the canal water. At the same time Ranbir (A-1) also brought his buffaloes to the canal. Ranbir asked Suresh to take out the buffaloes from the canal but Suresh refused to do so on the ground that the canal water was deep. At this, Ranbir pushed Suresh into the canal. Suresh came out of the canal water and went home crying and narrated the incident to his brother Krishan (PW-1). Krishan protested with Ranbir in this regard in the evening which led to an altercation between them. Ranbir inflicted some injuries to Krishan which was reported to the police in the night of September 26, 1990. On September 27,1990, Krishan is said to have been medically examined. On September 28,1990, at about 8.00 A.M., PW-1 and his uncle Balwan(deceased) were returning after answering the call of nature. When they were about to take turn to the street to their house, Ranbir (A-1), Balbir (A-2), Shiv Kumar (A-3), Sadhu (A-4) came out of the Gher of Ram Sarup (A-6). A-1 was armed with an axe while A-2 had Jailwa in his hand, A-3 and A-4 were armed with lathies. A-1, A-2, A-3 and A-4 surrounded Balwan and exhorted to finish him off as Krishan had escaped earlier. Seeing Balwan surrounded by A-1, A-2, A-3 and A-4, PW-1, Rohtas (PW-13) and Sahab Singh (PW-11) came running from their respective Gher. A-1 inflicted an axe blow on the head of Balwan while A-2 inflicted jailwa blow from the log side on the head of Balwan. A-3 and A-4 also inflicted lathi blows on Balwan. Balwan fell down. PW-1, PW-11 and PW-13 intervened. At this, A-3 and A-4 gave lathi blows to them also. A-2 attacked PW-11 as well. PW-1, PW-11 and PW-13 snatched lathies from A-3 and A-4. By that time number of people had arrived; seeing them A-1, A-2, A-3 and A-4 ran away from the spot. At that time, Lekh Ram (A-5), Ram Sarup (A-6), Bhalle Ram (A-7), Krishan son of Bhalle Ram (A-8) surrounded PW-1, PW-11 and PW-13 but PW-1, PW-11 and PW-13 attacked them by lathies which they had snatched from A-3 and A-4. PW-1, PW-11 and PW-13 took Balwan to Primary Health Centre, Ganaur in an unconscious condition but he died on the way. The doctor on duty there declared Balwan dead.

3. PW-1 lodged the complaint at Police Station, Ganaur at about 1.35 PM., based on which first information report was registered.

4. Daya Chand, ASI (PW-6) prepared inquest of the dead body and sent it for autopsy which was conducted by Dr. R.N. Tehlan (PW-8) at about 5.00P.M.

5. Dr. Krishan Kumar (PW-3), Medical Officer, Primary Health Centre, Ganaur examined PW-1, PW-11, PW-13, A-5, A-6, A-7 and A-8, all of whom were injured in the incident.

6. Ran Singh (PW-9) took all necessary steps towards investigation and after collecting necessary evidence and on completion of investigation, filed charge sheet in the Court of Judicial Magistrate, First Class, Sonepat against the eight accused persons.

7. PW-8 conducted post mortem examination and found following injuries on the dead body:

“1. Incised wound 10 x 3 cm present on right parietal area of the skull, anteo-postering, 3 cm lat. to midline, cutting scalp with r