1. Eleven accused persons were tried by the Additional Sessions Judge, Faridabad for the offence punishable under section 148, Section 302, Section 326, Section 324, section 323 and section 412 read with Section 149. The Sessions Judge convicted seven out of eleven for the offence punishable under section 302 read with section 149 and also for the various other offences for which they were charged. These seven appellants filed appeal before the High Court and the Division Bench of the Punjab & Haryana High Court acquitted two of them. As regards the five other accused, the High Court confirmed the conviction and sentence imposed on them. Criminal Appeal No. 744/2003 is the appeal preferred by one of the convicted persons, namely Chander Pal @ Raj Pal. Criminal Appeal No. 745/2003 is filed by the Rakesh, Shiv Kumar alias Shibbu and Anag Pal. Sunder, who was also convicted along with these appellants, has not filed any appeal challenging his conviction and sentence.
2. The incident took place on 11.7.1996 at about 4.00 a.m. at place called Ballabhgarh in Haryana State. PW-4 Mann Singh and PW-6 Surinder Singh were milking their cows in their cattle shed. According to the prosecution about 10 to 12 persons including these appellants came to that place and attacked PW-4 Mann Singh and PW-6 Surinder Singh with lathi and Ballam. At this time Megh Shyam came to the place and on seeing him all the accused surrounded him and attacked him with Ballam, Pharsa and Lathi. Accused Surinder was armed with a country made pistol and he shot Megh Shyam and caused injury on his head. All the appellants left the place with their weapons of offence. PW-4 and PW-6 and one Giani Singh also sustained injury. PW-4 and PW-6 and Megh Shyam were taken to B.K. Hospital and as the condition of Mann Singh was serious, he was referred to Safdarjung Hospital, Delhi. On a telephonic information being received by ASI Ram Avtar, he went to the hospital and recorded the statement of Mann Singh. Pursuant to that, crime was registered against accused persons. PW-16 conducted the investigation and questioned the witnesses and finally filed the charge-sheet implicating all the eleven accused.
3. We heard Shri P.S. Mishra, the learned senior counsel for the appellant Chandra Pal @ Raj Pal and Mr. A.T.M. Rangaramanujam, the learned senior counsel for appellants Rakesh and Ors. and also counsel for the State. The counsel for the appellant contended that the evidence adduced by the prosecution would only show that the object of the unlawful assembly was not to cause the death of Megh Shyam and reliance was placed on the testimony of PWs. 4 and 6. Our attention was drawn to the injuries sustained by Megh Shyam, PW4 and PW6 and also Gian Singh, who was not examined in this case. It was pointed out that the motive for committing this crime was that the daughter of Beera eloped with some person and Beera Singh had filed a complaint against PW-4 Mann Singh and his brother Surinder and on account of this there was enmity between Beera Singh and his sons on the one hand and Mann Singh and his brother on the other. We have carefully considered the evidence adduced and it would show that the appellants came to the place of incidence to teach a lesson to PW-4 and PW-6. These two witnesses had not suffered very serious injuries. Of course, one of the injuries sustained by PW-4 is grievous in nature. When these witnesses were being attacked Megh Shyam came there and the accused persons turned against him. There is no evidence to show that the unlawful assembly had any common object to do away with the Megh Shyam. Prosecution has not even alleged any motive or any enmity on the part of the accused persons against Megh Shyam. It is also important to note that incident happened at 5.00 a.m. and all the appellants allegedly came with various types of weapons. There is no evidence to indicate that these appellants were aware that Surinder was armed with a country mad gun. It is quite possible in that frenzy, Surinder must have taken weapon and caused injury to Mann Singh and that resulted in his death. Under these circumstances, it is difficult to assume that the unlawful assembly was to cause death of Mann Singh and in our opinion the Sessions Judge as well as the High Court erred in convicting these appellants for the offence under section 302 read with section 149.
4. The next question that would arise for consideration is what would be the common object of the unlawful assembly. We have gone through the medical certificate of the PW-4 and PW-6 and deceased Megh Shyam. It is clear that these appellants had caused grievous injuries to these Megh Shyam and PW-4. These appellants were carrying weapons like Pharsa, Ballam and Lathi. They are admittedly weapons of offence. It is clear that the object of the unlawful assembly must have been to cause grievous injuries either to PW-4 or PW-6 or Megh Shyam. That being so, the offence committed by these appellants would come under section 326, IPC read with section 149.
5. In the result, we acquit the appellants for the offence punishable under section 302 read with section 149 and instead convict the appellants for the offence punishable under section 326 read with section 149. These appellants have also been convicted for various other minor offences, and we are not interfering with the conviction and sentence on these counts. For the offence punishable under section 326 read with section 149 they are sentenced to undergo imprisonment for a period of 5 years and a fine of Rs. 20,000/- each, in default they have to suffer sentence of one year.
6. The appeals are disposed of to the above extent.