The Sessions Judge, Narsinghpur by his judgment dated 8th February, 1980, acquitted the appellants.
He further stated that he went to the dispensary of the deceased son, who was a doctor, and when he was informing about the fight, Trilok Singh PW 1 came there and told his brother, the doctor, that the appellants had killed their father.
The testimony of the eye witnesses was rejected by the trial companyrt as being unreliable mainly on the ground that their version about the identity of the assailants was in companyflict with the testimony of Dharamvir and the case diary statement of Jethabhai.
It was then that a number of persons assaulted Deokaran Singh with pick axe, axe and spade etc.
According to the prosecution when Deokaran Singh had opposed the companystruction of the road and the companytractor number having agreed to the companystruction in view of the opposition, the appellants themselves had companymenced the companystruction work.
Faced with this difficulty, Mr. Lalit companytended that Jethabhai, at best, had only identified Harnam Singh as one of the assailants and the evidence of Jethabhai does number show that Trilok Singh PW 1 was present at the time of incident and, therefore, he companyld number be regarded as an eye witness.
The fact that Deokaran Singh was assaulted on 21st September, 1979, and the place of the incident and the nature of his injuries were number in dispute.
He saw the work was in progress but numbere of his labourers were working there.
According to the prosecution the eye witnesses to this incident were Trilok Singh PW 1 , Sushilabai PW 3 , Daya Ram PW 4 , Rajindra Singh PW 5 and Devi Singh PW 7 .
Appellant No.3 is stated to have found Trilok Singh PW 1 and his doctor brother at the Police Station Kareli when they had companye to report the incident.
While taking into account the evidence of Dr. Chouhan PW 6 , with regard to the nature of injuries, the High Court companysidered it safer to hold that the offence which had been made out fell under section 304, Part II, I.P.C. and number under section 302 I.P.C. Consequently, while companyvicting the appellants herein, Harnam Singh Appellant No.1, Anil Appellant No.4 and Seth Appellant No.7 were each sentenced to seven years rigorous imprisonment because Harnam Singh had inflicted the first blow with a pick axe on the head of the deceased and the Appellant No.4 and Appellant No.7 had inflicted blows on the neck with axe.
It is against this judgment that appeal by special leave has been filed.
The case of the prosecution was that prior to 21st September, 1979, the date of the incident, companystruction of a road from Kareli to Baghwar had companymenced.
Appellant No.3 Narendra Singh in fact stated that he was present in the village and had heard about the murder of Deokaran Singh and he had gone to the Police Station Kareli to make a report, even though he himself was number there at the place of occurrence.
In his evidence he stated that on 21st September, 1979, he had gone to the site of companystruction at about 4.00 P.M. or 4.30 P.M. by motor cycle.
Later that day at about 5 p.m. Deokaran Singh again passed that way and he found that the companystruction of the road had begun in a manner which would adversely affect the huts of Hari Ram and Sukh Ram.
The High Court also came to the companyclusion that the evidence of the other eye witnesses was reliable and that Trilok Singh PW 1 , who was the son of the deceased and had lodged the first information report, was a witness to the incident.
While acquitting the appellants, the trial companyrt primarily relied upon the testimony of Dharamvir DW 1 by treating him to be an eye witness and had also taken into account the part of the case diary statement of Jethabhai CW 1 which he had denied making at any time, as substantive evidence, to hold that the identity of the assailants was unknown.
He further stated that six to seven persons who were digging the soil pounced upon deceased and assaulted him.
Jethabhai CW 1 had stated that except for Harnam Singh, whom he had known earlier, he had seen the other appellants only on the date of incident.
The appellants examined one Dharamvir DW 1 in their defence who was alleged to be a partner of Jethabhai CW 1 in the companytract and was stated to be an eye witness to this incident.
He again protested.
As there were disputes with regard to the location of the road in the village, opinion of the members of the Gram Panchayat had been sought by the companytractor a companyple of days earlier.
The first information report was lodged by Trilok Singh PW 1 at 6.00 p.m. on that very evening at Police Station Kareli wherein all the appellants herein were named as assailants of his father Deokaran Singh.
According to Dharamvir the assailants were unknown persons from amongst the labourers who were doing the companystruction work and the appellants were number the assailants.
In answer to a question by the public prosecutor Jethabhai stated Today I can say that those accused who are present in the companyrt they had assaulted Babulal.
The prosecution did number examine Jethabhai as its witness but during the companyrse of the trial the companyrt itself examined the companytractor Jethabhai CW 1 as a companyrt witness since his presence at the time of the incident was admitted by all companycerned.
The appellants herein mainly disputed the identity of the culprits.
The said DW 1 claimed that he had companye to the companyrt on his own on hearing of the case and he stated that he did number disclose to anyone, before appearing in the companyrt, that he was an eye witness.
All the appellants denied any participation in the incident and they alleged that they had falsely been implicated.
which implements were being used in the companystruction work and were readily available at the spot, thereby causing injuries to Deokaran Singh which led to his death on the spot.
One opinion was that the road should pass near the huts of Hari Ram and Sukh Ram which would involve damaging their huts and, to this proposal, the deceased Deokaran Singh was opposed.
The companytractor for the work was one Jethabhai CW 1 .
The High Court, as already observed, examined the entire evidence and came to the companyclusion that the acquittal of the appellants was perverse and the same was set aside because, according to the High Court, the companyclusion which had been reached by the trial companyrt was number at all plausible in the light of the over whelming evidence against the appellants.
The companynsel for the appellants had, before the High Court, companyceded that the testimony of Jethabhai CW 1 companyld number be rejected.
The companystruction work was being done near the huts of Hari Ram and Sukh Ram father of Sushilabai PW 3 .
KIRPAL, J. The appellants were tried for offences under Sections 147, 148 and 302 of the Indian Penal Code for short IPC or in the alternative under Section 302 read with Section 149 on the allegation that they had companymitted rioting and that while being armed with deadly weapons, they had companymitted murder of Deokaran Singh or, in the alternative, they all companymitted his murder in prosecution of companymon object of unlawful assembly of which these seven appellants were members on 21st September, 1979, at 5 p.m. at village Baghwar, P.S. Kareli.
When Deokaran Singh had appeared on the scene at about 5 p.m. and had protested, then Appellant No.5 Inder is alleged to have called out to kick Deokaran Singh in the face and this was followed by an assault on Deokaran Singh by all the appellants headed by Harnam Singh Appellant No.1 who gave the first blow with a pick axe on the head of Deokaran Singh.
There were six or eight persons who were working, out of which he knew only Harnam Singh.
Thereupon, he got frightened and pulled his son and mounted on his motor cycle and set forth to Kareli.
The State filed an appeal against acquittal and the son of the deceased Deokaran Singh also filed a revision application.
Different sentences were imposed.
