Judgment

Dr. ARIJIT PASAYAT, J.:-

1. Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court directing acquittal of respondents Bakhshish Singh, Balraj Singh and Gurmeet . Kaur while altering the conviction of respondent-Balbir Singh from one under Section 302 of the Indian Penal Code, 1860 (in short the IPC) to one under Section 304, Part 1, IPC. Learned Additional Sessions Judge Gurdaspur, had convicted each of the respondents for offence punishable under Section 302 read with Section 34, IPC.

2. Prosecution version as unfolded during trial is as follows:

Agricultural lands of Kabul Singh (PW4) and that of Mangal Singh (hereinafter referred to as the deceased), his nephew, and that of respondent-Bakhshish Singh and others adjoin each other and are located in the same vicinity in village Bhoa and fall within the jurisdiction of Police Station Sadar, Pathankot, District Gurdaspur. The land of Darshan Singh is also located nearby. About one week before the occurrence Darshan Singh was irrigating his land with canal water. The canal water over allowed through the Khal including the fields of Kabul Singh PW4 and entered into the fields of accused Bakhshish Singh wherein wheat crops were sown. Though this canal water had come, perhaps, from the field of Darshan Singh to the fields of the appellants but the accused were feeling that the canal water had come through the fields of deceased Mangal Singh. So, it was in this wake that on 1-5-1994, around 9.00 a.m. while Kabul Singh PW 4 and his nephew deceased-Mangal Singh were returning from the fields along with Swinder Kaur (PW5), mother of Mangal Singh, the accused persons, namely, Bakhshish Singh and Balbir Singh armed with a dang each, Balraj Singh armed with Chhavi were found standing on the pucca culvert on the metalled road near the house of accused-Bakhshish Singh. Gurmeet Kaur raised a lalkara saying that• Kabul Singh and Mangal Singh should not. be allowed to escape as they had damaged their crops. Bakhshish Singh and Balbir Singh took Mangal Singh in their grip and threw him on the ground while accused Balraj Singh at the instigation of his mother Gurmeet Kaur inflicted a Chhavi blow on the head of Mangal Singh and it is only when the close relations of the deceased prayed for sparing the life of Mangal Singh, the accused persons ran away from the scene of occurrence. Mangal Singh was removed to Civil Hospital, Pathankot from where he was referred to C. M.C. Ludhiana.

The aforesaid Mangal Singh breathed his last due to injuries on the way of Ludhiana. The dead body was brought to Civil Hospital, Pathankot. The statement Ex. PJ of Kabul Singh was recorded by .SI Jarnail Singh PW8 at 7.30 p. m. on 1-5-1994 and on its basis formal F. 1. R. Ex. PJ /2 was recorded at 7.55/8.55 p. m. on 1-5-1994. The special report reached the learned Iraq Magistrate at 5.05 a. m. on 2-5-1994. Thereafter SI Jarnail Singh (PW8) went to Civil Hospital, Pathankot and prepared inquest report Ex. PL and sent the dead body for post -mortem. On 2-5-1994, the Investigating Officer went to the scene of occurrence and prepared rough site plan Ex. PO with marginal notes. He took into possession five copies of sale, deeds produced by Kabul Singh vide memo Ex. PK. Accused Balbir Singh, Bakhshish Singh and Balraj Singh were arrested on 5-5- 1994. In pursuance of his disclosure statement on Ex. PP, accused Balraj Singh got recovered Gandasi Ex. PI which was taken into possession vide memo Ex. PRo Accused Gurmeet Kaur was also arrested.

Dr. Sunil Ghai (PW2) conducted autopsy on the dead body of deceased-Mangal Singh on, 2-5-1994 and found the following injury:

(1) Lacerated wound 2 cm x 0.5 cm stitched present on the middle of the head approximately 2 cm. left to the mid-line. On dissection, underlying parietal bone was fractured. SIC tissue was lacerated and there was extradural and subdural haematoma present. Brain tissue underlying was lacerated.

In the opinion of the doct