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2004 (3) Crimes 533
UTTARANCHAL HIGH COURT
Irshad Hussain, J.
Churha & Ors. —Appellants
versus
State—Respondent
Criminal Appeal No. 1148/2001
Decided 20.12.2003
Counsel for the parties :
For the Appellants :Mr. Vinod Sharma, Advocate.
For the State : Mr. G.S. Sandhu, A.G.A.
Headnote:Indian Penal Code, 1860 — Sections 147, 304/149 — Nine appellants convicted under — All appellants armed with lathis assaulted deceased to stop him from ploughing the field — Dispute over possession of field — Plea of self defence of property — Evidence showed that despite decisions of Revenue Courts against deceased he had continued to be in actual physical possession and was in possession on date of incident — Trial Court was justified to conclude that plea of self defence had not been established — Deceased had received only one fatal blow on head and one superficial injury on hand which put a question mark to prosecution case that nine accused appellants armed with lathis committed assault on deceased — Three prosecution witnesses attributed assault to deceased only by two accused appellants which appeared probable as on hearing commotion other appellants arrived — Conviction of rest seven accused-appellants was liable to be set aside — Conviction of two appellants who actually assaulted deceased could be sustained by Section 34 IPC even in absence of charge as no prejudice was caused to them — Their conviction was to be recorded u/s. 304, Part II, IPC but sentence of 10 years imprisonment awarded by trial court sustained. (Paras 20 to 25)
Result : Appeal allowed partly.
JUDGMENT
Irshad Hussain. J.—The appellants have been convicted and sentenced to undergo R.I. for one year under Section 147, I.P.C. and R.I. for ten years, each under Section 304, I.P.C. read with Section 149, I.P.C., per judgment dated 19.8.1983 passed, by the then Additional Sessions Judge, Dehradun in Sessions Trial No. 35 of 1982.
2. The appellants Churha and Kesho Ram are since deceased, there-fore, the appeals in regard to these two stand abated under Section 394 of the Code of Criminal Procedure.
3. Briefly stated the facts of the case as emerged from the F.I.R. and the evidence were that Karam Singh took ‘Dakhli-Rehan’ (possessory-mortgage) of agricultural land having an area of three Bighas situated in his village Dhakrani, P.S. Vikash Nagar, District Dehradun, from Tulsi, the father of appellant Nanhe, about twelve years ago (from the date of the occurrence). This land was subject matter of litigation between Karam Singh and appellant Nanhe but according to the prosecution Karam Singh remained in actual physical possession of the same. On 27.10.1981 at about 1 p.m. all the appellants trespassed into the land while Karam Singh was ploughing it. A state of commotion attracted Karam Singh’s brother Dharam Singh towards the said land besides co-villagers namely Raghu Ram, Samshad, Ratan and Raja Ram. All these persons reached on the land where they found Karam Singh lying injured in an unconscious state. He was immedia-tely shifted to Government hospital in Vikash Nagar on a bullock-cart and since his condition was serious the Medical Officer referred him to Christian Hospital for better management. The victim was admitted there in the evening of 27.10.1981 but he succumbed to injuries at about 6 p.m. on 28.10.1981. Informant, Dharam Singh (PW 2) then got prepared written report (Ext. Ka.7) and lodged it at P.S. Vikash Nagar at 9.50 p.m. on its basis F.I.R. (Ext. Ka.8) under Sections 147/304, I.P.C. was recorded and inves-tigation was entrusted to S.I. Kishan Singh (PW 5).
4. After completion of the initial formalities Investigating Officer left for Christian Hospital and on reaching there held inquest on the dead body of Karam Singh and prepared inquest report (Ext. Ka.10) and relevant documents including the challan report and thereafter des-patched the dead body for postmortem. Dr. K.K. Singh (PW 6) conducted autopsy on the dead body at 4 p.m. on 29.10.1981 and prepared autopsy report (Ext. Ka.4). On completion of the investigation, charge-sheet (Ext. Ka.20) was submitted against the appellants on 24.11.1981.
5. The appellants have pleaded not guilty to the charges and contended that they have been falsely implicated in the case on account of enmity. The appellant Churha (since deceased) claimed that he reached there at the scene after hearing the noise and was assaulted by lathis by Karam Singh deceased. Appellant Prem also denied his presence at the scene of the incident. Appellant Bal Mukand gave out that a quarrel took place between deceased Karam Singh, Nanhe, Dharam Singh, Raja Ram and Ram Swaroop and he had reached there to pacify them but in the process was given a lathi blow on the head by Dharam Singh. Appellant Puran made similar claim and sustaining of injuries at the hands of Ram Swaroop, Dharam Singh and Raja Ram. Appellant Mahendra Pal denied his presence at the scene of the incident and whereas appellant Om Prakash made similar assertion as made by Bal Mukand and Pooran. He also sustained injuries at the hands of Dharam Singh, Ram Swaroop and Raja Ram who wielded lathis in the assault. Appellant Narain Singh is the son of Nanhe and claimed that due to this relationship he has been falsely implicated. Appellant Kesho Ram (since deceased) also denied his presence at the scene of the incident and whereas appellant Nanhe asserted that he got the possession of the land on 24.10.1981 and when deceased Karam Singh started ploughing the land illegally on 27.10.1981 he went there and asked Karam Singh t
