IMPORTANT POINTS
Prosecution is obliged to explain grievous injuries of the accused.
When the accused exceeds his right of self defence, he can be convicted u/s 304 Part II.

JUDGMENT :

R. Banumathi, J.

Criminal Appeal No. 1817 of 2009 :

1. Being aggrieved by the conviction under Sections 302 r/w 149 I.P.C. and the sentence of life imprisonment, the appellants have preferred this appeal.

2. During the pendency of the appeal, it is stated at the Bar that appellants no.1-Manphool Singh (A-1), No.2-Rattan Singh (A-2) and No.4-Zile Singh (A-6) have died and the only contesting appellant i.e. appellant no.3-Surender Singh (A-5) is alive.

3. Summary of the case and details are briefly stated. Case of the prosecution is that due to previous enmity, on 14th March, 1994 when deceased no.1, Gopi Chand, and deceased no.2, Mahabir, were sitting at the house of Harpal, appellants and other co-accused (since acquitted) are alleged to have attacked the complainant party. Due to the said attack Gopi Chand (D-1) and Mahabir (D-2) died. Accused, Surender Singh, Zile Singh and Rattan Singh are said to have attacked Gopi Chand (D-1) with lathis and accused-Manphool Singh fired at Mahabir (D-2) with a gun.

4. To bring home the guilt of the accused before the trial court, the prosecution has examined three witnesses, namely, Harpal (PW-9), Manphool (PW-10) and Mahendra (PW-11) who have all stated that the accused have formed unlawful assemble on the fateful day and that Surender Singh (A-5), Zile Singh (A-6) and Rattan Singh (A-2) attacked Gopi Chand (D-1) with lathis and Manphool (A-1) fired at Mahabir (D-2). Their evidence to some extent is also corroborated by the medical evidence. Based on the evidence of the eye-witnesses, the recovery of weapons and the medical evidence, the trial court convicted the appellants under Sections 302 r/w 149 and 307 r/w 149 I.P.C. The trial court also convicted other accused Narender (A-3), Pawan Kumar (A-4) and Vijay (A-7) by invoking Section 149 I.P.C. On appeal, the High Court confirmed the conviction of the appellants herein but acquitted the accused, namely, Narender (A-3), Pawan Kumar (A-4) and Vijay (A-7). Being aggrieved of the acquittal of the said accused, the State has preferred Criminal Appeal no.332 of 2009.

5. We have heard Mr. Rishi Malhotra, learned counsel appearing for the appellants and Mr. Arun Bhardwaj, learned Additional Advocate General appearing for the respondent-State. The main contention urged by learned counsel for the appellants is that the occurrence was at the night time and the evidence of the eye-witnesses, as to overt act of each of the accused, is not believable. It is further submitted by learned counsel that the defence put fourth by the accused in exercise of the private defence by Manphool (A-1) and others in the occurrence, was not properly appreciated by the courts below. In this regard, learned counsel has drawn our attention to the evidence of Dr. P.K. Jain (PW-5), Dr. K.C. Kajal (DW-1) and Dr. P.K. Anand (DW-2) who have issued wound certificate regarding the injuries sustained by the appellant-Manphool (A-1). It was submitted that on the night of the occurrence when Manphool (A-1) was coming home he was intercepted by the complainant party and attacked and Manhool (A-1) has reacted in private defence which aspect was not properly considered by the courts below.

6. We have carefully gone through the rival submissions, the materials on record and the impugned judgment.

7. No doubt eye-witnesses Harpal (PW-9), Manphool (PW-10) and Mahendra (PW-11) have stated about the occurrence and the overt act of the accused, the only question falling for consideration is whether the accused-party acted in self-defence. In his questioning under Section 313 Cr.P.C., Manphool (A-1) has stated that on the date of occurrence when he reached near the house of Pirthi Singh at about 9 p.m., deceased-Gopi Chand (D-1) subjected him and questioned him about his sons and subsequently Manphool (A-1) was given a lathi blow on his head by Gopi Chand (D-1) along with Tara Chand and Lal Chand; and that Gopi Chand (D-1) was having a gun at that point. Appellant-Manphool has stated t