(1) ALL the seven appellants were found guilty and convicted by the learned Sessions Judge, Bathinda of the charge for offence punishable under Section 148 of the Indian Penal Code (hereinafter referred to as the Code ). Jit Singh appellant was found guilty of the substantive charge of murder of Sukhmander Singh under Section 302 of the Code while the remaining appellants were found guilty of this charge with the aid of Section 149 of the Code. All the seven appellants were also convicted on the charge for offence under Section 324/149 of the Code for the injuries on the persons of Surjit Singh and Kewal Singh witnesses. Raj Singh and Balraj Singh appellants were also convicted under Section 324 of the Code for causing simple injuries to Sukhmander Singh and Harpal Kaur PW in the first incident. All the appellants were awarded one years rigorous imprisonment on the first count while imprisonment for life and fine of Rs. 2000/- or in default of payment thereof one years rigorous imprisonment on the second count and one years rigorous imprisonment each on the third count. Balraj Singh and Raj Singh appellants were awarded one year RI in the fourth count. Gurnek Singh alias Harnek Singh, Nachattar Singh and Gurmail Singh, co-accused of the appellants, were, however, acquitted by giving them the benefit of doubt. Feeling aggrieved against their conviction and sentence, Raj Singh, Jarnail Singh alias Jaila, Thana Singh and Dev Singh alias Teja Singh appellants have preferred Criminal Appeal No. 461-DB of 1991 while Malkiat Singh, Jit Singh and Balraj Singh preferred Criminal Appear No. 86-DB of 1992. Both these appeals shall be disposed of by this order as these arise out of the same judgment of the trial Court.

(2) IN brief, the facts of the prosecution case are that Raj Singh, Jarnail Singh, Thana Singh, Teja Singh alias Dev Singh accused are real brothers, Gurmail Singh, Gurnek Singh accused (since acquitted) are real brothers and cousin brothers and Raj Singh, Malkiat Singh, Jit Singh and Balraj Singh accused are real brothers and collaterers of Raj Singh accused. Nachattar Singh accused (since acquitted) is also collateral of Raj Singh. All the accused belong to the party of Raj Singh etc. Both the parties used to reside in Village Gumti Kalan, Raj Singh accused suspected illicit intimacy of his wife with Sukhmander Singh (Deceased ). With this back ground of mistrust and suspicion, it is alleged that on May 25, 1987, at about 9. 15 P. M. Sukhmander Singh (deceased) was accosted by Gurnek Singh alias Harnek Singh, Gurmail Singh and Nachattar Singh (since acquitted) along with Raj Singh and Balraj Singh near the house of Balbir Marasi (Baru ). On hearing the exchange of abuses between Sukhmander Singh (deceased) and the accused party, Malkiat Singh PW brother of the deceased, came down from the roof of his house. He along with his brother Surjeet Singh and sister Harpal Kaur then rushed to the spot and saw in electric light that Gurnek Singh, Gurmail Singh, Raj Singh and Nachattar Singh accused were armed with gandasas while Balraj Singh was armed with a kirpan. Sukhmander Singh (deceased) was also then carrying a kirpan. Gurnek Singh dealt a gandasa blow on the head of Sukhmander Singh. Harpal Kaur (PW) tried to rescue her brother, but Balraj Singh accused gave a kirpan blow on her head. Sukhmander Singh (deceased) also inflicted injuries to these accused in self-defence. Due to fear, all these witnesses along with Sukhmander Singh returned to their house and closed its outer door. Malkiat Singh (PW) also informed Naib Singh, Sarpanch and Raj Singh, Panch of this occurrence. Thereafter Malkiat Singh (PW) along with his brother Surjeet Singh, Sukhmander Singh-injured, mother Gurdev Kaur and Kewal Singh (PW8) was taking Harpal Kaur injured on their tractor-trolley to Civil Hospital, Rampura. When their tractor-trolley reached near the house of Master Resham Singh of their village at about 11 PM another tractor trolley driven by Thana Singh accused came from the opposite direction. Thana Singh blocked the road with his tractor trolley. Thana Singh, Gurnek Singh, Gurmail Singh, Raj Singh and Jarnail Singh accused armed with gandasas alighted from the said trolley while Nachattar Singh armed with gandasa, Malkiat Singh, Jit Singh and Balraj Singh carrying Kirpans and Teja Singh carrying a dang came from the side of the house of Nachattar Singh accused. Gurmail Singh dealt a gandasa blow on the head of Surjeet Singh (PW) when the latter was sitting on the tractor. Kewal Singh (PW) tried to intervene, but Malkiat Singh accused gave a kirpan blow from its reverse side on the fingers of his left hand. Sukhmander Singh (deceased) alighted from the trolley and ran inside the outer house of Master Resham Singh in a bid to escape. All the accused then chased Sukhmander Singh. Balraj Singh accused dealt a kirpan blow on the head of Sukhmander Singh. Sukhmander Singh (deceased) also gave kirpan blows to the accused in order to save himself. Gurnek Singh accused gave a gandasa blow on the left thigh of Sukhmander Singh (deceased), who fell down. Jit Singh accused also gave a kirpan blow on the neck of Sukhmander Singh while Nachhatar Singh accused gave a gandasa blow on the right knee of Sukhmander Singh. All the accused continued inflicting more injuries with their respective weapons to Sukhmander Singh. The accused party threatened the witnesses to kill if they came near them. Thereafter, the accused along with their respective weapons, left the spot. Sukhmander Singh was found dead by these witnesses just thereafter. Leaving Mithu Singh, Chaukidar to guard the dead body, Malkiat Singh and Surjit (PWs) removed all the injured witnesses in a truck to Civil Hospital, Rampura Phul. On the way, Malkiat Singh lighted from the truck at Police Station, Phul where he lodged the report (Ex. PA) with Sub Inspector Surjan Singh at 00. 15 AM during that night. A case under Sections 302/324/ 148/149/341/506 of the Code was registered against the accused. Special report of the case was conveyed to the Ilaqa Magistrate by Constable Surinder Singh (PW7) at 6. 30 AM on the next morning.

(3) SUB Inspector Surjan Singh, after registration of the case, rushed to Village Gumti Kalan and found the deadbody of Sukhmander Singh lying in the outer house of Master Resham Singh. He prepared Inquest report (fix. PB) of the dead body and entrusted it to Head Constable Bharat Singh for autopsy. He also inspected the spot and prepared its rough site plan (Ex. PI). Blood stained earth was also seized from the spot after putting it in a scaled parcel. A pair of shoes of Sukhmander Singh (deceased) also lay near his dead body and was taken into possession. He also prepared the rough site plan (Ex. PC) of the place where the first incident had taken place. Some blood stained earth was lying there and taken into possession after putting it in a sealed percel. He also recorded the statements of the witnesses.

(4) REVERTING to the fate of the injured witnesses, It transpires that Dr. Raj Kumar Garg (PW5) had examined Surjit Singh (PW) at 2. 35 AM during the night of occurrence and found three injuries on his person. The injury with a sharp-edged weapon on his left parietal region was kept under observation subject to X-ray examination while the other two abrasions located on the forehead and on the back of left upper arm were declared simple in nature.

(5) THIS doctor also medically examined Kirpal Kaur (PW) at 2. 55 AM during that night and found three injuries on her person. Injury No. 1 located on her right parietal region was caused with a sharp edged weapon and kept under observation while the other two injuries were caused with a blunt weapon. Injury No. 2 located on the dorsum of the right middle finger was also kept under observation subject to X-ray examination while abrasion On the back of left forearm was declared simple in nature.

(6) KEWAL Singh (PW) was examined by this doctor at 3. 25 AM during the same night and four injuries were found on his person out of which injury No. 2 located on the planter surface of right great toe was caused with a sharp edged weapon while the rest with blunt weapon. Injuries No. 3 and 4 were located on the back of left middle finger and left ring finger respectively, while the other injury was located on the left side of the rose. Ultimately all the injuries on the persons of these witnesses were found simple in nature.

(7) THE autopsy on the dead body of Sukhmander Singh was conducted by Dr. A. S. Chugh (PW8) on May 26, 1987, at 9. 30 AM. He found 25 injuries on the dead body out of which injuries Nos. 9 to 12, 22 and 25 were abrasions caused with blunt weapon while the rest of the injuries were incised wounds. Injuries Nos. 4 and 5 located on the left side of the neck were found individually sufficient to cause death in the ordinary course of nature as the external carotid artery and common carotid artery were found cut thereunder.

(8) SI Surajn Singh after inspecting the spot left for Civil Hospital, Rampura for recording statements of the injured witnesses. He happened to accost Head constable Bharat Singh on the way who produced parcels before him containing the shirt Ex. P1, banayan Ex. P. 2, under-wear Ex. P. 3 and bracelet Ex. P. 4 (iron beads) of the deceased, he took the same in possession. He then went to the hospital and recorded statements of Kirpal Kaur, Surjit Singh, Kewal Singh and Gurdev Kaur witnesses. Thereafter he went to the Primary Health Centre, Bhagta where Raj Singh, Thana Singh, Jarnail Singh, Dev Singh, Malkiat Singh and Balraj Singh accused were already admitted. However, the doctor declared all of them unfit to make statements.

(9) REMAINING accused continued absconding till 7th June, 1987 when Mehar Singh produced Gurmell Singh, Gurnek Singh and Nachattar Singh accused (since acquitted) before the Sub Inspector. These accused also produced three gandasas which were taken into possession. Raj Singh and Balraj Singh accused were arrested on 28-6-1986 while the remaining accused namely Thana Singh, Jarnail Singh, Dev Singh and Malkiat Singh were arrested by ASI Darshan Singh PW4 on 18th July, 1987. He had also taken into possession tractor bearing registration No. 7122 on that day.

(10) THE sealed parcels of the earth lifted from the two places were sent to the Chemical Examiner who found the blood thereon vide his report Ex. PV while the Sereologist found the same to be stained with human blood vide report Ex. PX.

(11) AFTER completion of investigation, ultimately all the accused were arraigned for trial on such like allegations by submitting charge sheet before the committing magistrate who committed the case against the accused to the court of Session.

(12) BEFORE the trial court in order to prove its, above referred case the prosecution examined six witnesses besides tendering formal evidence of Head constable Iqbal Singh; Head constable Bharat Singh and Constable Balwant Singh on affidavits which were ordered to be read in evidence as Ex. PB/1, Ex. PC/1 and Ex. PD. These witnesses were not called by the defence for cross-examination purposes. Reports Ex. PV and Ex. PX of the Chemical Examiner and the Sereologist respectively were also tendered in evidence. Malkiat Singh, Surjit Singh and Kewal Singh injured witnesses supported the above referred case of the prosecution while Harpal Kaur injured and Gurdev Kaur eye witness were not examined but given up as being unnecessary.

(13) BEFORE the trial Court, Raj Singh, appellant set up the plea of self defence as under: On 25-5-87, I along with Balraj Singh had gone to the house of Nachhattar Singh to ask him if he wanted to get his land levelled. We were in front of his house Sukhminder Singh deceased and his brothers Surjit Singh and Darshan Singh came there and started abusing us. Myself and Balraj Singh came out and asked Sukhminder Singh as to why he was abusing us. Thereupon Sukhminder Singh gave a kirpan blow on my shoulder and Surjit Singh gave kirpan blow on the left hand of my co-accused Balraj Singh. In exercise of the right of private defence I gave gandasa blow on the head of Sukhminder Singh. Hearing our alarm Nachattar Singh came out of his house and separated us and took us inside the house. In the first occurrence only myself and Balraj Singh had participated/thereafter Nachattar Singh went to our house and informed Thana Singh and others who arringed for the tractor trolly and were coming to the house of Nachhatar Singh in order to take me and Balraj Singh to the hospital. When my relatives were coming to the house of Nachhatar Singh m order to remove us to the hospital on the way Sukhminder Singh deceased, Surjit Singh, Darshan Singh; Karnail Singh, Balbir Singh, Darshan Singh @ Fidda and Bhutto all armed with kirpans came in a separate tractor trolly and brought their tractor in front of the tractor which Was coming to the house of Nachhatar Singh in order to take us to the hospital. Sukhminder Singh and others then caused injuries by opening attack of Thana Singh, Jarnail Singh, Balraj Singh, Dev Singh and Malkiat Singh and as a result of that attack Thana Singh entered the outer house of Resham Singh for their safety and those persons were also chased by Sukhminder Singh and his partymen with weapons and the latter caused, injuries to Thana Singh, Jarnail Singh, Balraj Singh, Dev Singh and Surjit Singh. I did not participate in this occurrence since my right arm was badly injured. Inside the house of Resham Singh, Thana Singh, Jarnail Singh and Balraj Singh caused injuries to Sukhminder Singh in self defence. Nachattar Singh was falsely implicated because he rescued us and took inside his house at the time of the first occurrence. Jit Singh has been implicated in this case because he took all the injured to the Primary Health Centre, Bhagta, Jit Singh and Nachhatar Singh were found innocent by the Police and were got discharged under orders of the S. P. (D ). Gurmel Singh and Gurnek Singh have been implicated due to land dispute with the maternal grandfather of Sukhminder Singh deceased. I never suspected Sukhminder Singh have illicit relations with my wife. In fact the land of maternal grandfather of Sukhminder Singh was mortgaged for a sum of Rs. 3000/- with my father. Thus land was redeemed. Sukhminder Singh deceased used to complain to us that we had charged excess mortgage amount from his maternal grandfather and that we should return the excess amount. On this score Sukhminder Singh was inimical with us. PW Malkiat Singh owed Rs. 7000/- to Jit Singh accused through pronote. Jit Singh was demanding the said amount and for that reason he has been falsely implicated in this case. Balraj Singh, Thana Singh, Dev Singh, and Malkiat Singh appellants as well as Nachattar Singh accused since acquitted supported the above referred version of Raj Singh accused. Jit Singh appellant and Gurnek Singh (since acquitted) also adopted the statement of Raj Singh appellant. Jarnail Singh appellant also adopted the statement of Raj Singh but maintained that he had not participated in this occurrence that he has been falsely involved due to land dispute and claimed innocence.

(14) WHEN called upon to enter upon their defence by the trial Court, the accused examined Dr. Gurdeep Singh DW1 in order to prove the injuries on the person of Raj Singh, Jarnail Singh, Thana Singh, Dev Singh, Malkiat Singh and Balraj Singh accused. Dr. Gurdeep Singh DW1 medically examined Raj Singh accused at 3. 15 AM on 26-5-1987 and found an incised wound measuring 16 cms x 10 cms x 4 cms on the outer aspect of his right shoulder cutting the underlying bone. The injury was declared grievous in nature. Thana Singh accused was medically examined at 3. 45 AM on that day and two incised wounds were found on his person one of which was located on the lateral aspect of the neck and other on the right index finger. The neck injury was kept under observation while the other injury was declared simple in nature. Jarnail Singh accused was examined by this doctor on that day at 4. 00 AM and five injuries were found on his person out of which four were incised wounds located on the right side of the head cutting underlying bone, the other on the base and dorsum of left middle finger and third on the left forearm and fourth on the back of the right shoulder. A contusion was also found on the left forearm. Injury No. 1 on the head was declared grievous in nature while injuries 2 and 5 were kept under observation subject to X-ray examination. Injuries 3 and 4 were, however, found simple in nature. Balraj Singh accused was medically examined by this doctor on that day and five incised wounds were found on his person, one of which was located on the palmer aspect of the left hand, the other on the left side of the head cutting underlying bone, the third on the right cheek, fourth on the right leg and fifth on the palmer aspect of the left little finger. Injury No. 2 was declared grievous while the rest were simple.

(15) ON the same day at 4. 30 AM this doctor medically examined Dev Singh accused and found incised wound on the dorsom lateral aspect of right forearm situated transversely 10 cms above the wrist joint. It was kept under observation subject to X-ray examination. Malkiat Singh accused was examined by this doctor on the same day at 4. 45 AM and an incised wound was found on the back of right forarm cutting underlying bone. This injury was declared grievous in nature.

(16) THE trial Court, however, believing the ocular evidence of the injured witnesses coupled with the medical evidence convicted and sentenced the appellants as referred above while discarding the version of self defence. Gurnek Singh, Gurmel Singh and Nachattar Singh accused were, however, acquitted by giving them benefit of doubt.

(17) WE have heard the learned counsel for the parties besides perusing the record.

(18) IT being a case of cross versions, the circumstantial and medical evidence would play crucial role in determining the truthfulness of these two versions in view of well known principle of appraisal of evidence that men may tell lie but the circumstances seldom. The version of the prosecution that five accused persons namely Raj Singh, Gurnek Singh, Gurmel Singh and Nachattar Singh armed with gandasa and Balraj Singh accused carrying kirpan had waylaid Sukhminder Singh deceased near the house of Balbir Marasing in the habitation of Village Gumti Kalar is not acceptable because in case the five accused persons had done so on the ground that they suspected illicit intimacy of the deceased with the wife of Raj Singh accused they would not wait for the arrival of Malkiat Singh, Surjit Singh brothers and Harpal Kaur sister of the deceased before opening the assault but strangely enough according to Malkiat Singh and Surjit Singh eye witnesses these accused had opened assault in the first incident Gurnek Singh accused (since acquitted) had given gandasa blow on the head of the deceased after their arrival while single blow with kirpan was given on the head of Kirpal Kaur when she tried to rescue her brother. On the other hand one would expect numerous injuries on the person of Sukhminder Singh deceased had he been waylaid by five duly armed persons on the above referred grouse. Under these circumstances the testimony of Malkiat Singh and Surjit Singh eye witnesses brothers of the deceased in this record being not acceptable had to be discorded especially when only other witness allegedly injured in this incident namely Harpal Kaur alias Kirpal Kaur sister of the deceased had not been examined by the prosecution and given up as unnecessary. The conduct of Malkiat Singh and Surjit Singh brother of the deceased in not arming themselves on hearing the altercation between their brother Sukhminder Singh and the above referred five accused before rushing to his rescue from their house also belies that the first incident has not taken place as alleged by them. Strangely enough the prosecution had not examined Naib Singh Sarpanch and Raj Singh Panch although according to Malkiat Singh PW1 he had informed them of the first occurrence. Thus the valuable evidence of these responsible persons of the village panchayat had been withheld for the reasons best known to the prosecution. The matter does not rest here as according to eye witnesses Sukhminder Singh deceased alone with kirpan has managed to give injuries to the accused including grievous injury on the shoulder of Raj Singh accused measuring 16 cms x 10 cms x 4 cms on the right shoulder cutting underlying bone.

(19) TO crown it all according to Kewal Singh PW3, Mst Kirpal Kaur had sustained head injury with the kirpan in the second occurrence. The medical evidence of Dr. Raj Kumar PW5 reveals that Mst Kirpal Kaur had received three injuries in all out of which only one injury caused with sharp edged weapon was located on the right parietal region and it was ultimately found simple in nature whereas other two injuries were found on the dorsum of right middle finger and abrasions on the left forearm and its middle part. For the sake of ready reference it would be worthwhile at the costs of repetition to reproduce here injuries.

1. Incised wound 2. 5 cm x 1/2 cm bone deep on the right parietal region of head obliquely placed 8 cms above the top of pinna of right ear. Clotted blood was present. Advised X-ray. 2. Contusion reddish blue in colour 1. 5 cm x 1 cm on the dorsum surface of right middle finger. Advised X-ray. 3. Abrasion on the back surface of left forearm in its middle part. Red in colour 1. 5 cm x 1/2 cm in size.

Thus if Mst Kirpal Kaur received head injury with kirpan in the second incident then there was no question of suffering this injury on the head with kirpan at the hands of Balraj Singh accused in the first incident. It is noteworthy that Kewal Singh PW is an injured witness and was not present in the first incident. Thus it appears that he has revealed the truth being not aware of the prosecution version qua the first incident, about the injury on the head of Mst Harpal Kaur. Thus the testimony of this witness not only belies the version of Malkiat Singh and Surjit Singh eye witnesses but gives swear jolt to the case of the prosecution along with the circumstances discussed above that the first incident has not taken place in the manner alleged by the prosecution. If that is so then there is no escape but to believe the version of Raj Singh and Balraj Singh accused as well as Nachattar Singh accused that they were attacked by Sukhminder Singh deceased along with his elder brother Surjit Singh and Darshan Singh when they had gone to the house of Nachattar Singh accused for enquiring whether his land was required to be levelled. Strangely enough the trial Court had failed to apply its mind to the above referred circumstance of the case. The version of Raj Singh accused that they had gone to the house of Nachattar Singh to enquire whether he wanted his land to be levelled is not contradicted by Malkiat Singh PW when it was put to him but on the other hand he simply depicted lack of knowledge which also supports the truthfulness of the accused version.

(20) THE most crucial point in this case pertains to the manner and circumstances under which the second incident took place near the house of Master Resham Singh and Nachattar Singh accused, wherein Sukhminder Singh deceased was killed while Kewal Singh, Surjit Singh, Malkiat Singh and Mst Kirpal Kaur witnesses had received injuries besides Jarnail Singh, Thana Singh, Malkiat Singh and Balraj Singh accused appellants. The version of the prosecution that at about 11. 00 PM they were taking Harpal Kaur for treatment on tractor trolley to Civil Hospital, Rampura is belied by the factum that she had not received any serious injury as per the case of the prosecution in the first incident. On the other hand as already discussed according to Kewal Singh PW3, she had received head injury in the second incident. Thus there was no question of taking this unmarried girl to Civil Hospital, Rampura for treatment of her injury, especially when it is admitted case of the parties that there is Ayurvedic Dispensary in their own village and such like injuries could have been easily treated there, It is not the case of the prosecution that Sukhminder Singh deceased had suffered serious injuries in the first incident or that he, was being taken to the Hospital for treatment of his injury. The factum that the complainant party had adopted longer route through village from western to earstem side and deposed by Malkiat Singh PW 1 then the other shorter route passing in front of the village Gurudwara and going towards western side from the house of the complainant also spells out trial the complainant party in tractor was not proceeding in an innocent manner to the hospital for treatment of the injuries of Mst Harpal Kaur. On the other hand, the version of accused Ran Singh, Balraj Singh and Nachattar Singh accused that in the first incident former two accused after receiving injuries at the hands of Sukhminder Singh deceased and his brothers Surjit Singh and Darshan Singh and that thereafter they were taken by their latter co-accused i. e. Nachattar Singh to the latters house sounds more probable especially when the prosecution version regarding the first incident had already been disbelieved. It is noteworthy that house of Nachattar Singh accused and that of the deceased are located in the same lane and at a distance of about 45 karams whereas the house of Balbir Marasi falls at a distance of 25 karams from the house of complainant according to Malkiat Singh PW 1. Thus after the first incident Malkiat Singh and Surjit Singh witnesses could have easily noticed that Balbir Singh and Raj Singh accused had gone to the house of Nachattar Singh co-accused especially when there was electric light in the street. Thus the version of the accused that after the first incident Balraj Singh and Raj Singh injured accused were taken by their co-accused Nachattar Singh to his house and that thereafter Nachattar Singh went to the house of the injured accused and informed Thana Singh and their other relations who after arranging tractor trolley were coming to the house of Nachattar Singh in order to take Raj Singh and Balraj Singh accused to the hospital, sound more probable especially when Raj Singh had suffered grievous injury on his right shoulder resulting in cutting underlying bone. This conclusion is further fortified from the factum that according to the prosecution the tractor driven by Thana Singh accused, Gurmel Singh, Gurnek Singh, Jarnail Singh and Raj Singh accused had arrived at the spot duly armed whereas Nachattar Singh, Malkiat Singh, Jeet Singh, Balraj Singh, Dev Singh and Teja Singh duly armed and merged out of the house of Nachattar Singh accused at the time of the second incident. In case the accused had mounted the preplanned assault by waylaying the tractor trolley in which Sukhminder Singh deceased and his other relations including his sister Harpal Kaur were travelling then they would emerge from one side especially When they were not expected to know that the deceased would follow longer route running, in front of the house of Nachattar Singh accused for going to the hospital. The testimoney of Sub Inspector Surjan Singh further shows that tractor of the deceased was parked on the wrong side of the road in front of the house of Master Resham Singh, which in turn supports the version of the accused that it was the complainant party who had, waylaid the tractor of the accused party when the latter was removing Raj Singh and Balraj Singh injured accused for treatment to the hospital.

(21) THE factum that SI Surjan Singh failed to locate any blood stains on the tractor or trolley or any marks of striking of weapons. On the tractor trolley of the complainant further belies the version of prosecution that Kewal Singh, Surjit Singh, Malkiat Singh and Kirpal Kaur had received injuries while present in the tractor trolley. It is noteworthy that Surjit Singh PW was driving the tractor and had received the injuries while sitting or standing on the drivers seat whereas medical evidence reveals that injury on the head was parallel to the midline. Thus it could not be sustained while sitting on higher level than his assailants. Dr. Raj Kumar Garg PW 5 reveals that Surjit Singh had received the following three injuries:

1. Abrasion reddish brown in colour over the forehead 3 cms above the right supra orbital margin. 2. Incised wound 3 cm x 1/2 cm bone deep on the left parietal region, parallel to the midline 12 cm above the top of pinna of left ear. Clotted blood was present. Advised X-ray. 3. Abrasion red in colour 2. 5 cm in size irregular on the back of left upper arm in about its middle part.

Perusal of injury No. 2 leaves no doubt that it could be received if the victim is in lower than or same level of the assailant.

(22) THIS doctor also examined Kewat Singh PW and found the following tour injuries on his person:

1. Abrasion 1. 5 cm x 2cm clear margins on the left side of nose obliquely placed. Clotted blood scab was present. 2. Incised wound 1. 5 cm x 2 mm skin deep on the planter surface of right great toe. Clotted blood was present. 3. Contusion 1 cm x 1/2 cm reddish blue in colour on the back surface of left middle finger. Advised X-ray. 4. Contusion 1 cm X 1 cm reddish blue on the back surface of left ring finger, Advised X-ray.

The perusal of injury No. 2 of Surjit Singh, injury No. 1 of Kirpal Kaur, and injury No. 2 of Kewal Singh PW which are incised wounds clearly show that the injured must have bled profusely from these injuries and blood must have been fallen on the tractor trolley. Admittedly, the injured witnesses had not spread any cot or bleeding in the trolley while removing these injured to the hospital after the first incident which is normally done. Thus all these pieces of circumstantial evidence belie the version of the prosecution that they were taking Kirpal Kaur injured to the hospital for treatment on tractor trolley or that the accused party had waylaid them near the house of Master Resham Singh.

(23) THE prosecution version also suffers from the inherent infirmity as Sukhminder Singh deceased alone with Kirpan would not be able to cause injuries on the person of six accused namely Raj Singh, Jarnail Singh, Thana Singh, Dev Singh alias Teja Singh, Malkiat Singh and Balraj Singh especially when after receiving injuries on the head he would be incapacitated to wield kirpan and according to the prosecution witnesses after receiving two injuries in the second incident Sukhminder Singh had fallendown. It is noteworthy that the six accused named above have suffered fifteen injuries in all as per testimony of Dr. Gurdip Singh DW1 out of which one injury on the person of Raj Singh and one injury on the person of Balraj Singh were received in the first incident. It is worthwhile to reproduce evidence of Gurdip Singh qua the nature and number of injuries received on the person of Raj Singh and Balraj Singh accused: On 26-5-1987 at 3. 15 AM I medically examined Raj Singh son of Bhan Singh aged 28 years resident of Gumti Kalan. He was brought by Jit Singh son of Maghar Singh of Gumti Kalan and I found the following injury on his person: Incised wound measuring 16 cm x 10 cms x 4 cms on the right shoulder, outer aspect. The underlying bone was cut. The injury was declared as grievous caused by a sharp edged weapon, probably within 12 hours. xxx xxx xxx On the same day at 4. 15 AM I medically examined Balraj Singh son of Maghar Singh, resident of V. Gumti Kalan, aged about 82 years, brought by Jit Singh son of Maghar Singh of Gumti Kalan and found the following injuries on his person:-

1. Incised wound measuring 6 cm x 2 cm x 1 cm on the palmer aspect of left hand running transversally from the lateral aspect of base of little finger to the base of ring finger. 2. Incised wound measuring 7 cm x 1 cm x 1 cm on the left side of head, 9 cms above the left eye brow, and 9 cms above the left auditory canal. Underlying bone was cut. 3. Incised wound measuring 6. 5 cm x 1 cm x 1. 5 cm on the right cheek, starting from 1 cm above the angle of lips towards the ear, 5 cms from the right external auditory meatus. 4. Incised wound measuring 2 cm x 0. 25 cm x skin deep running transversely on the lateral side of right leg 7 cms above the and. 5. Incised wound measuring 1 cm x 0. 25 cm x skin deep on the tip of left little finger on the palmer aspect.

Injuries Nos. 1, 2 and 3 were dressed. Injury No. 2 was opined to be grievous and injuries Nos. 1, 3, 4 and 5 were opined to be simple in nature, all caused by sharp edged weapon probably within 12 hours. On the other hand it sounds more probable that even if the complainant party was proceeding towards the hospital for medical treatment of Harpal Kaur then the witnesses would have certainly carried some weapons especially when Sukhminder Singh deceased had received injuries on his head in the first incident, and these witnesses would certainly apprehend reasonable danger of assault from the accused party. Thus the testimony of Malkiat Singh, Kewal Singh and Surjit Singh eye witnesses that they were unarmed and did not come out of trolley during this incident is not acceptable. Moreover Dr. Raj Kumar Garg rightly opined that Kewal Singh PW1 could receive injuries Nos. 3 and 4 if he is holding some weapon. The perusal of these injuries already reproduced clearly shows that these were located on the back surface of left middle finger while injury No. 4 is located on the back surface of ring finger. A person would not expose dorsum of his hand while warding of the blow. Thus the medical evidence lends due assurance to the version of the accused party that they were attacked by these witnesses including Surjit Singh PW besides others variously armed.

(24) RAJ Singh would be incapacitated after receiving grievous injury on the right shoulder in the first incident. Thus there was no question of Raj Singh taking active part in the second incident. Malkiat Singh PW1 as well as Surjit Singh PW2 admitted during cross-examination that Raj Singh did not wield any weapon after receiving injury in the first incident. Surjit Singh further admitted that Raj Singh accused did not give any injury to his brother in the second incident. This circumstance also reveals that the prosecution witnesses are not telling the whole truth besides revealing that Raj Singh accused had a dire necessity of prompt medical aid.

(25) THE testimony of Malkiat Singh PW, brother of the deceased that the accused suspected illicit intimacy of Sukhminder Singh deceased with the wife of Raj Singh accused, is also not acceptable because in that case they would have given him numerous injuries in the first incident whereas according to Malkiat Singh and Surjit Singh, eye witnesses, Sukhminder Singh deceased was given only one injury on the head with the gandasa by Gurnek Singh accused (since acquitted ). On the other hand versions of Raj Singh accused that he never suspected illicit intimacy of his wife with Sukhminder Singh deceased sounds more probable. He further stated that land of maternal grandfather of Sukhminder Singh deceased was mortgaged for a sum of Rs. 3000/-with his father, but that land was redeemed on payment of higher price and that Sukhminder Singh deceased used to complain as to why these accused had charged excessive mortgage amount, appears to be latent root cause of this occurrence. It is noteworthy that Malkiat Singh PW admits that he has taken Rs. 7000/- on pronote from Jeet Singh accused and the said amount is yet to be paid. He feigned ignorance if Jang Singh maternal uncle of his father had mortgaged six acres of land with the father of Gurmel Singh and Gurnek Singh accused for a sum of Rs. 10000/- or that Jang Singh failed to redeem this land due to lack of money or that they used to demolish common ridge of this land located near their land. He, however, admitted that Gurmel Singh and Gurnek Singh sold their land and purchased other land which probabilises the version of the accused that the complainant party used to demolish the common ridge of fields of Gurmel Singh and Gurnek Singh accused and their fields. It is noteworthy that Dev Singh, Jarnail Singh, Raj Singh and Thana Singh accused are real brothers while Gurmel Singh and Gurnek Singh accused are their first cousins and according to Malkiat Singh remaining accused name Balraj Singh, Jeeta and Malkiat Singh as well as Nachattar Singh accused are their near collaterals. Thus it appears that latent dispute over the land is the sole root cause of this occurrence.

(26) IN view of the above findings there is no escape but to hold that the complainant party was the aggressor.

(27) FACED with the above situation, Mr. S. S. Dhaliwal, learned Deputy Advocate General contends that the accused had exceeded their right of self-defence under the provisions of Section 99 of the Indian Penal Code as they had given fatal injury to Sukhminder Singh deceased after his fall on the ground.

(28) THE question then arises whether the accused had exceeded the right of exercise of self defence by giving fatal injuries to Sukhminder Singh after his fall on the ground as contended by Mr. Dhaliwal in this regard. It is notwithstanding that the accused had suffered injuries on their person with sharp edged weapon including grievous injuries. Thus they had reasonable apprehension of at least suffering grievous hurt if not death at the hands of the complainant party. Their case squarely falls under clause Firstly as well as Secondly of Section 100 of the Indian Penal Code. Once it is taken that the deceased was the aggressor then Thana Singh, Jarnail Singh, Raj Singh, Dev Singh, Balraj Singh and Malkiat Singh accused were not expected to weigh the force used by them in golden scales especially when there is not reliable and acceptable evidence as to which of the accused had given injuries on the neck of the victim after his fall although the eye witnesses alleged that Jit Singh accused appellant had done so and in the next breath they took shelter of the darkness of night when questioned as to on what part of their body the accused had received injuries at the hands of the deceased. The factum that Jit Singh accused had not suffered any injury in this occurrence also makes his participation in his occurrence highly doubtful.

(29) FOR the foregoing reasons there is no escape but to accept the appeal of Raj Singh, Jarnail Singh, Thana Singh, Dev Singh alias Teja Singh Malkiat Singh and Balraj Singh appellants by giving them the benefit of Exception contained in Section 100. Clauses Firstly and Secondly of the Indian Penal Code, while appeal of Jit Singh appellant is accepted by giving him the benefit of doubt qua his participation. All the seven appellants in both the appeals be set at liberty forthwith if not required in any other case.