Judgment

R.B. Dixit, J. — Feeling aggrieved by the judgment and order of conviction dated 21-4-1989 passed in Sessions Trial No. 4/88 of IInd Additional Sessions Judge, Shivpuri thereby con-victing appellants Sukhwant Singh under Section 302 and Satnam Singh and Kashmira Singh under Section 302 read with Section 34 IPC and senten-cing them to suffer life imprisonment each. Appellants have come in appeal seeking redress praying for setting aside the aforesaid order of conviction and sentence passed against them.

2. Kashmira Singh has died du-ring pendency of appeal, with the result appeal stands abated against him.

3. The facts giving rise to pro-secution in brief are that a day before the incident, accused Sukhwant Singh was abusing deceased-Succha Singh under the influence of liquor and had passed a remark as to why he was saying to beat him with shoes. The deceased told him that he would talk in the morning.

4. Next day on 7-10-1987 a Panchayat was held in the house of Arjun Singh. When Sukhwant Singh was questioned regarding the false allegation, he stated that this infor-mation was received by him from his brother-in-law Joga Singh. The Panchayat was then adjourned for calling Joga Singh. At about 3 p.m. on the same day, Joga Singh along with his father arrived there. When Joga Singh was put a question by Balkar Singh whether he had made the allegation, then Joga Singh told that the fact was informed by his father. However, his father Reghuveer Singh who was pre-sent, denied the allegation. This led to abusing between the parties and meanwhile Kashmira Singh exhorted Sukhwant Singh to finish the deceased. Then the deceased was caught hold by Satnam Singh and Kashmira Singh and Sukhwant Singh picked up an axe which was lying near ‘Tandoor’ and assaulted the deceased on his head. When he wanted to assault second time. Balkar Singh, Sukhdev Singh, Arjun Singh and Maluk Singh intervened and warded off accused persons.

5. The deceased was taken to Shivpuri hospital, however, he died in the way. Balkar Singh lodged First Information Report (Ex. P-12) at Satan-wada Police Station. Police prepared ‘Panchanama’ of the dead body and the post-mortem was performed by Dr. G.D. Agrawal (P.W. 3) who found incised wound oblique 5 x 1 cm Skin deep going backward and forward centrally situa-ted over right fronto pariental region, dura meta torn 3 x 0.5 cm size vertically and brain matter coming out from the dura. The cause of death is injury to vital organ i.e. brain causing haema-toma, dural tear and laegation of brain.

6. The accused persons were apprehended and an axe was recovered at the instance of accused Sukhwant Singh.

7. The defence of accused persons was that they were beaten by the deceased and when persons of his side ran for safety, the deceased and other persons followed them. Conse-quently deceased fell from the boundary wall and sustained a head injury by falling on the stones. Accused persons had also suffered injuries in the same incident.

8. The learned counsel for appellants has contended before us that there was no previous history of enmity between the parties and accused persons had gone unarmed to parti-cipate in the Panchayat. Since the prosecution has failed to explain the injuries sustained by the accused persons, it has to be held that the prosecution witnesses have suppressed the genesis of the prosecution story. Learned counsel appearing for the State on the other hand has, however, supported the findings of the learned trial Court.

9. We have anxiously considered the submissions of the learned counsel of the parties and have carefully per-used the evidence on record.

10. Arjun Singh (P.W. 4) is the witness at whose residence parties assembled to hold a panchayat. According to him at one side were the accused persons and on the other side of panchayat were deceased and Balkar Singh and Maluk Singh, his brother Sukhdev Singh was also present. When Sukhwant Singh was asked as to why he was abusing the deceased,