Hari Singh and Another Vs. State of Rajasthan - Court Judgment

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criminal - private defence - sections 34, 302 and 402 of indian penal code, 1860 - appeal against conviction - first information report (fir) not first in point of time - evidence of witnesses corroborated by fir - skull of deceased fractured and internal injuries received in brain sufficient in ordinary course of nature to cause his death - second appellant did not caused fatal injury therefore his conviction under section 302 cannot be sustained - participation of second appellant in murderous assault on deceased along with first appellant proved beyond doubt - first appellant guilty under section 302/34 - conviction of second appellant altered from section 302 to section 402/34 - appeal dismissed. - [a.k. sarkar,; k.n. wanchoo and; raghubar dayal, jj.] in 1949, the banking companies act was passed with a view to protect and secure the interests of depositors. in 1953 s. 45-o was enacted by the banking companies (amendment) act, in pursuance of the recommendations of the banking companies liquidation proceedings committee. section 45-o (1) provided that in computing the period of limitation prescribed for an application by a banking company which is being wound up, the period commencing from the date of the presentation of the winding up petition shall be excluded; and s. 45-o (3) provided that sub-s. (1) shall also apply to a banking company in respect of which the winding-up petition was presented before the commencement of the amendment act, that is, 30th december 1953. on 1st may 1947, a decree for a sum of money had been passed in favour of the appellant--bank, against the respondents. the decree provided that the amount which was due on 30th may should be paid in 6 annual instalments each payable on 30th december from 1947 to 1952. the decree also provided that if the respondents failed to pay any instalment within 4 months of its becoming due, the appellant shall be entitled to realise all the amounts then due, by execution. none of the instalments was paid. on may 11, 1948 a petition for winding up of the appellant was presented and it was ordered to be wound up on august 3, 1948. in august 1956 the liquidator filed an execution application on the original side of the high court, for realising the amounts. the application was allowed, but the high court, in letters patent appeal, held that the application was barred by time. in appeal to this court, the appellant contended that in view of s. 45-o the application was within time: while the respondents contended that: (1) all the instalments fell due by 1st may 1948 by operation of the default clause, and therefore, the application was barred by art. 182 (7) of the limitation act, 1908, by the time s. 45- 0 was brought on the statute book; (ii) the section has no retrospective operation so as to revive a debt which had become barred at the date of its enactment; and (iii) if the default clause gave only an option to the appellant so that it could apply for execution as and when an instalment fell due, then, the instalments which fell due in 1947, 1948 and 1949 had become barred before the enactment of the section; and the instalments which fell due during the years 1948 to 1952 were also not saved from the bar of limitation, as the section applied only to those cases where the right to execute had arisen before the presentation of the winding-up petition. held: (by full court): section 45-0 saved the execution application from the bar of limitation imposed by art. 182(7) of the limitation act. [712h; 719a; 727d; 742a] (i) per sarkar, j: the right to apply for execution in respect of the instalments under the decree arose on the dates on which they respectively fell due. [713h] the default clause was only intended for the benefit of the appellant and gave an option to the appellant to sue for the entire amount or waive the benefit of the option, and the appellant had not taken advantage of it. [713d, e, h] ram culpo bhattacharji v. ram chunder shome, (1887) i.l.r. 14 cal. 352, referred to. (ii) per sarkar, j: there is no reason why a distinction should have been intended between debtors, the claims against whom might have become barred before the section was enacted and those, the claims against whom, became barred thereafter. in fact, the object of the section would be better achieved by applying it to both classes. [715 f-g] one of the methods by which, the object of the act which was to protect depositors, could be achieved is by extending the period of limitation for enforcement of the claims of a bank in liquidation, so that more money may be collected for payment to the depositors. that being so, the largest extension of the period, which the language used is capable of, must have been intended. [715e-f] besides, s. 45-o(3) expressly makes sub-s. (1), applicable to a banking company being would up on a petition presented before 30th december 1953 under s. 45-0(1) and (3) a period which had started to run before that date could be excluded, and, there is no hint that such exclusion is confined to cases where the right had not become barred by that date. subs. (3) must have been intended to give full retrospective effect to subs. (1), as otherwise, it need not have been enacted, because, sub-s. (1) would, by its own terms, apply to cases of winding up on a petition presented before the amending act, and, considering the intention of the act, sub-s. (3) could not have been enacted as a surplusage or ex abundanti cautela. therefore, s. 45-0(1) applies to applications by the banking company, even when they had become barred before the amending act. [716 b-e h; 717 c] per wanchoo, j: the appellant would be entitled to exclude the entire period from 11th may 1948--the date of presentation of the winding-up application--upto the date of the execution application and would thus be entitled to execute the decree for the total of the 6 instalments due. [726 e] the language of s. 45-0(1) implies that it was meant to be retrospective and that conclusion becomes inevitable when it is read with sub-s. (3), in the background of the remedy that the legislature intended to provide for the benefit of depositors. section 45-0(1) imperatively lava down that where an application is filed by a banking company which was being would up on or after 30th december 1953 the court must exclude the period commencing from the date of presentation of the winding up petition to the date of the application in computing the period of limitation. further by virtue of subs (3), subs. (1) applies not only to those banking companies which were being wound up on petitions presented on or after the section came into force, but also to those banking companies where the winding-up petition was made before 30th december 1953 and whether the winding up order was made before or after that date provided the banking company was in the process of being wound up when the application was filed; and, there is no scope for the court to consider whether the application, if filed before 30th december 1953, would barred by limitation or not. [722h; 723 a-b, d-e; 724 e] per raghubar dayal j: the appellant's application for execution is maintainable and not barred by time, because, the effect of s. 45-0(1) is that, in applications made by a banking company which is being would up, or for whose winding up a petition has been presented before 30th december 1953, the period of limitation is arrested on the date of the presentation of the winding up petition, and it is not material whether such date is earlier than 30th december 1953 or net. therefore, the sub-section is retrospective, and an application can be made even in regard to matters with respect to which such action could be taken on the date of the presentation of the windup petition, but could not be taken, because of efflux of time, on 30th december 1953. [731c; 736g. 737e] one of the conditions for the application of the sub- section is that a "banking company is being wound up", and this condition would be satisfied by all companies with respect to which winding up orders had been made either before 30th december 1953 or thereafter. there is nothing in the language of the sub-section to limit the expression to those companies which respect to which winding up orders are made subsequent to that date. the provision is not for the benefit of such companies only, but, is for the benefit of all companies which would be in the process of winding up during the enforcement of the act. this is also apparent when sub-ss. (1) and (3) are read together. so read, the period of exclusion would be available in connection with applications by a banking company which is being wound up or with respect to which a petition for winding up has keen made prior to 30th december 1953. if the provisions of sub- s. (1) can apply to the banking companies with respect to which proceedings on a winding petition were pending on 30th december 1953, there is no reason why they should not apply to banking companies with respect to which winding up orders had been made prior 'to that date. further, if a restricted interpretation is given to sub-s. (1), by confining it to cases where the cause of action was not barred on 30th december 1953, then sub-s. (3) will have no utility, because, that sub-section only provides that whatever advantage a banking company can derive from the provisions of sub-s. (1) when it is being wound up, would be available to it even if it is not being wound up, if a petition for its winding up had been presented prior to 30th december 1953. the only case in which the banking company can take advantage of sub-s. (3), then, would be vhen the cause of action for the application has not lapsed by that date and the proceedings on a winding up application were pending on that date. but, such cases would be covered by the language of sub-s. (1)itself, for, the cause of action would be alive on 30th december 1953 and the winding up order would be made subsequent to that date. [734-b-e; 736b, e-h] case law referred to. (iii) per sarkar and raghubar dayal, jj.: section 45- 0(1) should be read as permitting the exclusion of the entire period commencing from the date of the presentation of the winding up petition where the debts became due before that date, and, in cases there the debt became due subsequently such part of that period as commences from the date of the accrual of the debt. [718e; 741f] per sarkar, j.: there is no reason why it should have been intended that debts which fell due before the presentation of the winding up petition but were not barred by that date could be recovered, and not those which became due thereafter. no doubt, if the sub-section is applied to the case of a debt accruing due to a banking company after the presentation of a winding up petition, such a debt would be completely free from the bar of limitation, but since it has that effect in the case of debts which accrued due prior to the presentation of the petit,ion and had not become barred on that date, the section must be construed as permitting the whole of the period commencing from the presentation of the petition to be excluded where in fact it could be done, and a part of that period only where the whole of it could not be excluded. [717f, h; 718c, h] cortis v. the kent water works company, 7 b & c 314, referred to. per raghubar dayal, j: the appellant waived its right under the default clause of the decree and sought execution for the realisation of the various instalments. even so the execution application was within time, because, a banking company is entitled to exclude, the period from the date on which the winding up petition was presented upto the date of the institution of the application, from the period of limitation prescribed, and it would be illogical to hold that it is not entitled to ask that a shorter period, as the case would be, when the cause of action arose subsequent to the presentation of the winding up petition, should be excluded. it may be that this means, the entire period of limitation is abrogated with respect to causes of action arising subsequent to the date of the winding up petition, but it would be anomalous to hold that action can be taken with the help of the sub-section with respect to causes of action' which had arisen much earlier than the date of the presentation of the winding up petition, but action cannot be taken with respect to causes of action arising subsequent to such a date if it had not been taken within the prescribed period of limitation. [740g, 741c, g-h] per wanchoo j.: the present case is governed by s. 45- 0(3)' because, the winding up petition was presented before s. 45-0(1) came into force, but by virtue of sub-s. (3), sub-s. '(1) would apply. as there was default in the payment of the instalment due on 30th december 1947, the right to execute all the remaining instalments arose on ist may 1948 and since that right was not waived, limitation for all the instalments began even on ist may 1948, while the winding up application was filed on 11th may 1948, and so, the appellant could take advantage of the section and execute the decree for the entire amount. [726a-e; 727c-d] exclusion of time cannot take place where time has not begun to run before the date from which the exclusion begins. therefore, in order that s. 45-0(1) should apply, it is necessary that the period of limitation for the application should have begun to run before the date of winding up petition, but should not have run out. [724-c] on this interpretation, in the case of instalment decrees without a default clause, the instalments which became due and were not paid before the winding up petition may be recoverable by execution, while in the case of instalments which became due after the presentation of the petition, the exclusion provided by the section would not come into play. but if the sub-section is interpreted as stopping limitation in all cases, after the presentation of the winding up petition, it will result in another anomaly, that there would be no limitation at all in a case where the liquidator files a suit and gets a decree. [7241; 725a]  - the learned judge found the evidence of remaining three eye-witnesses believable as regards accused hari singh, heera singh and brijendra but in view of contradictions and inconsistencies in their evidence as regards the remaining 17 accused he did not think it safe to accept it and, therefore, gave benefit of doubt to them. with respect to the assault on buddha the high court held that his evidence suffered from material improvements and, therefore, it was not at all safe to rely upon his evidence for convicting any accused. 5. the learned counsel appearing for the two appellants, whose conviction under section 302 has been confirmed by the high court, submitted that the high court failed to appreciate that the f. he also submitted that the courts below failed to appreciate that exh.orderg.t. nanavati, j.1. this is an appeal by special leave against the judgment and order passed by the high court of rajasthan in criminal appeal nos 239 of 1983 and 388 of 1985. cr. a. no 239 was filed by the four convicted accused whereas cr. a. no 388 was filed by the state against the acquittal of the 17 remaining accused and also against the acquittal of accused ramphool under section 302 ipc.2. briefly sated, the prosecution case was that there was enmity between the family of the accused and the family of babu singh. since 3 or 4 days before 29.7.81 the accused were threatening to kill members of the family of babu singh and his brother p.w. 1 harbhajan. on 29.7.81 at about 6.00 o'clock in the morning while buddha, son of harbhajan was returning from hillside with milk all the 21 accused assaulted him and tried to kill him. hearing his cries harbhajan and his brother babu singh ran to his rescue. while they reached near the house of one amar singh, the accused who was coming from the opposite side encircled babu and started beating him. accused hari singh gave 2-3 blows with his 'lathi' (stick) on the head of babu. accused heera singh gave one or two lathi blows on his legs. accused brijendra also gave 3 or 4 'lathi' blows of the person of babu. so babu fell down and thereafter all the accused except shrawan and mohar singh gave further 'lathi' blows to him. at that time accused shrawan and mohar singh were saying that babu singh should be killed and they would bear the expenses for defending them. meanwhile hearing shouts raised by harbhajan, p.w. 2 mathalli and p.w. 3 bharosey came there. believing that babu was dead the accused left that place and went to the house of babu. accused gopal, benai singh, bhanwar and dharam singh entered the house and took away the gun and belt of cartridges belonging to babu. while his wife protested accused gopal and dharam sing gave 'lathi' blows and accused benai singh and bhanwar gave fist blows to her. harbhajan took babu to bayana hospital. by that time his son buddha was also removed to that hospital. harbhajan then went to the house of one chandra shekar, got a complaint regarding the incident prepared and went with it to the police station. he reached there at 6.45 a.m. and gave the complaint. on its basis the f.i.r. (exh. p-1) was prepared by p.w. 15 s.h.o. kailash bhagwati. the police officer then went to the hospital and recorded the complaint of buddha (exh. d-5) with respect to the assault on him. after completing the investigation the police chargesheeted all the 21 accused. they were thereafter tried in the court of additional sessions judge, bharatpur for the offences punishable under section 147, 148, 307 and 302 ipc. the accused who had entered the house of babu and removed his gun and belt of cartridges were also charged for the offences punishable under section 454 and 380 ipc. accused shrawam and mohar singh who had not taken any part in beating babu singh were charged for the offences punishable under sections, 147, 307 read with section 149 and section 302 read with section 149 ipc.3. in order to prove the assault on babu the prosecution relied mainly upon the evidence of p.w. 5 buddha, his dying declaration and p.w. 9 jai singh. jai singh did not support the prosecution and was declared hostile. the learned additional session judge found the evidence of p.w. 5 buddha suffering from some major contradictions and infirmities and, therefore, believed his evidence only with respect to accused hari singh, heera singh and ramphool. as regards the fatal assault on babu the prosecution relied upon the evidence of p.w. 1 harbhajan, p.w. 2 mathalli, p.w. 3 bharosey and p.w. 4 bishni. in view of the admission made by bishni in her evidence that she had not seen the killing of her husband the learned additional judge held that she was not an eye witness. the learned judge found the evidence of remaining three eye-witnesses believable as regards accused hari singh, heera singh and brijendra but in view of contradictions and inconsistencies in their evidence as regards the remaining 17 accused he did not think it safe to accept it and, therefore, gave benefit of doubt to them. as 24 injuries were caused to buddha out of which 3 were grievous the learned trial judge convicted accused ramphool, hari singh and heera singh under section 307 ipc he also convicted accused hari singh, heera singh and brijendra under section 302 ipc for causing death of babu. thus, accused hari singh and heera singh were convicted for the offences punishable under sections 302 and 307 ipc, accused brijendra under section 302 ipc and ramphool under section 307 ipc. these convicted accused were acquitted of all the other charges.4. the four convicted accused filed criminal appeal no. 239 of 1983 challenging their conviction. the state filed an acquittal appeal against the 17 accused who were completely acquitted and also against the acquittal of accused ramphool under section 302 ipc leave to appeal was granted only against some of them but it is not necessary now to refer to that aspect as the acquittal appeal was dismissed by the high court and that order has become final. the high court after reappreciating the evidence confirmed the conviction of hari singh and brijendra under section 302 ipc for causing death of babu as it found that the evidence against them was quite consistent and sufficient. the high court acquitted heera singh as it found that his name was not mentioned in the f.i.r. and he was falsely implicated as one of the persons who had given lathi blows to the deceased. with respect to the assault on buddha the high court held that his evidence suffered from material improvements and, therefore, it was not at all safe to rely upon his evidence for convicting any accused. the high court, therefore, acquitted all the three accused who were convicted by the trial court under section 307 ipc the high court also disbelieved the evidence with respect to the third incident, namely, accused going to the house of babu and taking away his gun and belt of cartridges after causing some injuries to his wife bishni.5. the learned counsel appearing for the two appellants, whose conviction under section 302 has been confirmed by the high court, submitted that the high court failed to appreciate that the f.i.r. (exh. p-1) could not have been recorded at 6.45 a.m. in view of certain admission made by p.w. 1 harbhajan and that in all probability the complaint against the accused was recorded after a complaint was given by accused gopal against babu, harbhajan, buddha and others at the bayana police station with respect to the same incident. he also submitted that the courts below failed to appreciate that exh. d-5 was the first information in point of time and the investigation should be deemed to have started on the basis of the said information and, therefore, exh. p-1 could not have been treated as f.i.r. it was also contended that p.w. 3 bharosey was not an independent witness and, therefore, it was not proper to convict the appellants relying upon the evidence of two interested witnesses only. it was also contended that the courts below committed an error in not believing the defence of the appellants that injuries were caused by them in exercise of their right of private defence, particularly when it was proved that accused hari singh had received two injuries on his person during that incident and one of them was a fracture. lastly, it was contended that the evidence does not justify their conviction under section 302 ipc and, therefore, their conviction under that section is improper and illegal.6. after going through the evidence we find that there is no substance in any of the contentions raised on behalf of the appellants. the first incident, that is, the assault on babu took place at about 6 a.m. according to the prosecution evidence. even in the cross-complaint filed by accused gopal time of the incident was mentioned as 6.a.m. though his version about the incident was different. it was submitted that p.w. 1 harbhajan in his evidence has stated that after the accused left he took his brother babu to the hospital, then went to the house of chandra shekar, got a complaint regarding the incident prepared and then went to the police station and therefore considering the time that would have been taken in doing all these things and distance, harbhajan could not have reached the police station at 6.45 a.m. the evidence discloses that the police station was only two furlongs away in the eastern direction from the place of the incident. the hospital to which babu was taken by harbhajan was on the way to the police station. though it was brought out in his cross-examination that house of chandra shekar was about 500 to 600 yards away from the hospital no attempt was made to elicit in which direction it was situated. if the hospital and the house of chandra shekar were on the way to the police station it is difficult to appreciate how more than 45 minutes would have been taken in lodging the complaint. there was absolutely no reason for the investigating officer at that stage to put incorrect time in the f.i.r. another fact which appears from the f.i.r. is that it was registered as crime no. 230 of 1981. the complaint which accused gopal gave was registered as crime no 231 of 1981. thus the complaint of harbhajan was registered earlier. the complaint exh. d-5 was taken down by the investigating officer after going to the hospital. for all these reasons, it cannot be said that f.i.r, exh. p-1, was not first in point of time. the courts below, therefore, rightly treated exh. p-1 as the f.i.r. and committed no error in relying upon the same for the purpose of corrobration.7. after going through the evidence of eye witnesses we find that the courts below have not committed any error in appreciating their evidence which would justify interference by this court. we find that the names of p.w. 2 mathalli and p.w. 3 bharosey were mentioned in the f.i.r. (exh. p-1) which was recorded within a short time. as stated earlier mathalli did not fully support the prosecution and was declared a hostile witness. he however did depose about the presence of appellants heera singh and brijendra and giving of lathi blows by them to deceased babu and also about presence of p.w. 3 bharosey at the time of the incident. he was in no way connected with deceased babu or p.w. 1 harbhajan nor did he have any enmity with the appellants. p.w. 3 bharosey's statement was not recorded on the same day but was recorded on 14.8.91. according to the investigating officer he could not record his statement earlier because he was not available when he had tried to contact him. relying upon the statement of p.w. 3 bharosey that during all those days he was in bayana and not gone out, it was submitted by the learned counsel that the said explanation is false and that bharosey was falsely put up as an eye witness. as stated earlier name of p.w. 3 bharosey was mentioned in the f.i.r. and therefore it is not possible to accept the contention that he was a got up witness. merely because the witness did not go out of bayana town it cannot be said that he was available all the time and that the investigating officer was not telling the truth when the stated that he was not available when he had tried to contact him. it was also submitted that p.w. 3 bharosey was closely related to deceased babu and thus was a highly interested witness and, therefore, no reliance should have been placed upon his evidence without independent corroboration. in his cross-examination he denied that father of harbhajan and babu was his real uncle. no attempt was made thereafter to establish his relationship with deceased babu or harbhajan. the fact that the houses of deceased babu, p.w. 1 harbhajan, p.w. 3 bharosey were situated in the same complex, by itself, cannot lead to an inference that he was a partisan witness. even babu and harbhajan were living in separate houses though in the same complex. it was not even suggested to p.w. 3 bharosey that he was staying jointly with harbhajan or babu. therefore, not much weight can be attached to the statement of p.w. 2 mathalli that bharosey was living in the same house in which babu and harbhajan resided. what the witness really meant was that he was living in the same complex. therefore, bharosey cannot be said to be an interested witness as no other connection has been established between him and deceased babu and harbhajan. the courts below were, therefore, right in placing reliance upon the evidence of p.w. 1 harbhajan as it was corroborated by the f.i.r (exh.p-1) and also by the evidence of p.w. 2 mathalli and p.w. 3 bharosey for believing the presence of the appellants at the scene of the offence and the role played by them.8. the accused including the appellant had pleaded right of private defence by alleging that on the date of the incident at about 6.a.m. near the house of one amar singh, babu harbhajan and his sons had attacked gopal with lathis. babu had a gun with him. while babu was loading his gun with a cartridge accused gopal gave a lathi blow to him with the result that the gun fell down. hearing his shouts hari singh, rattan, jagga and others had come. hari singh tried to save gopal and while doing so he himself received some lathi blows from harbhajan and his sons. the high court and trial court rightly did not believe this defence version in view of large number of injuries on the person of babu and absence of any material to show that the accused had received injuries during this incident.9. it was lastly contended by the learned counsel for the appellants that in absence of any evidence as to who had caused fatal injuries to deceased babu none of the two appellants could have been convicted substantively for the offence punishable under section 302 ipc the evidence of the eye-witnesses is that appellant no. 1 hari singh had given lathi blows on the head of the deceased. the medical evidence discloses that skull of babu was fractured and the internal injuries which he had received in his brain were by themselves sufficient in the ordinary course of nature to cause his death. appellant no. 1 was, therefore, rightly convicted for the offence punishable under section 302 ipc appellant no. 2 according to the evidence of the eye-witnesses, had given stick blows on the legs of the deceased. though the eye-witnesses have also stated that some more blows were also given by him to babu after he has fallen down they have not stated on which part of the body those blows were given. thus, there is no clear evidence on record to show that appellant no. 2 had caused a fatal injury. therefore, conviction of appellant no. 2 under section 302 cannot be sustained, however, his participation in the murderous assault on babu along with appellant no. 1 is proved beyond any doubt and, therefore, he would be guilty under section 302 read with section 34 ipc. therefore, his conviction will have to be altered from section 302 to section 302 read with section 34 ipc however, the order of sentence imposed upon him is confirmed.10. in the result the appeal is dismissed subject to the modification stated above. the appellants were ordered to be enlarged on bail by this court on july 23, 1987. therefore, they are ordered to surrender immediately to serve out the remaining sentence.

Judgment:
ORDER

G.T. Nanavati, J.

1. This is an appeal by special leave against the judgment and order passed by the High Court of Rajasthan in Criminal Appeal Nos 239 of 1983 and 388 of 1985. Cr. A. No 239 was filed by the four convicted accused whereas Cr. A. No 388 was filed by the State against the acquittal of the 17 remaining accused and also against the acquittal of Accused Ramphool under Section 302 IPC.

2. Briefly sated, the prosecution case was that there was enmity between the family of the accused and the family of Babu Singh. Since 3 or 4 days before 29.7.81 the accused were threatening to kill members of the family of Babu Singh and his brother P.W. 1 Harbhajan. On 29.7.81 at about 6.00 O'clock in the morning while Buddha, son of Harbhajan was returning from hillside with milk all the 21 accused assaulted him and tried to kill him. Hearing his cries Harbhajan and his brother Babu Singh ran to his rescue. While they reached near the house of one Amar Singh, the accused who was coming from the opposite side encircled Babu and started beating him. Accused Hari Singh gave 2-3 blows with his 'lathi' (stick) on the head of Babu. Accused Heera Singh gave one or two lathi blows on his legs. Accused Brijendra also gave 3 or 4 'lathi' blows of the person of Babu. So Babu fell down and thereafter all the accused except Shrawan and Mohar Singh gave further 'lathi' blows to him. At that time Accused Shrawan and Mohar Singh were saying that Babu Singh should be killed and they would bear the expenses for defending them. Meanwhile hearing shouts raised by Harbhajan, P.W. 2 Mathalli and P.W. 3 Bharosey came there. Believing that Babu was dead the accused left that place and went to the house of Babu. Accused Gopal, Benai Singh, Bhanwar and Dharam Singh entered the house and took away the gun and belt of cartridges belonging to Babu. While his wife protested Accused Gopal and Dharam Sing gave 'lathi' blows and Accused Benai Singh and Bhanwar gave fist blows to her. Harbhajan took Babu to Bayana Hospital. By that time his son Buddha was also removed to that hospital. Harbhajan then went to the house of one Chandra Shekar, got a complaint regarding the incident prepared and went with it to the police station. He reached there at 6.45 A.M. and gave the complaint. On its basis the F.I.R. (Exh. P-1) was prepared by P.W. 15 S.H.O. Kailash Bhagwati. The police officer then went to the hospital and recorded the complaint of Buddha (Exh. D-5) with respect to the assault on him. After completing the investigation the police chargesheeted all the 21 accused. They were thereafter tried in the Court of Additional Sessions Judge, Bharatpur for the offences punishable under Section 147, 148, 307 and 302 IPC. The accused who had entered the house of Babu and removed his gun and belt of cartridges were also charged for the offences punishable under Section 454 and 380 IPC. Accused Shrawam and Mohar Singh who had not taken any part in beating Babu Singh were charged for the offences punishable under Sections, 147, 307 read with Section 149 and Section 302 read with Section 149 IPC.

3. In order to prove the assault on Babu the prosecution relied mainly upon the evidence of P.W. 5 Buddha, his dying declaration and P.W. 9 Jai Singh. Jai Singh did not support the prosecution and was declared hostile. The learned Additional Session Judge found the evidence of P.W. 5 Buddha suffering from some major contradictions and infirmities and, therefore, believed his evidence only with respect to Accused Hari Singh, Heera Singh and Ramphool. As regards the fatal assault on Babu the prosecution relied upon the evidence of P.W. 1 Harbhajan, P.W. 2 Mathalli, P.W. 3 Bharosey and P.W. 4 Bishni. In view of the admission made by Bishni in her evidence that she had not seen the killing of her husband the learned Additional Judge held that she was not an eye witness. The learned Judge found the evidence of remaining three eye-witnesses believable as regards Accused Hari Singh, Heera Singh and Brijendra but in view of contradictions and inconsistencies in their evidence as regards the remaining 17 accused he did not think it safe to accept it and, therefore, gave benefit of doubt to them. As 24 injuries were caused to Buddha out of which 3 were grievous the learned trial judge convicted Accused Ramphool, Hari Singh and Heera Singh under Section 307 IPC He also convicted Accused Hari Singh, Heera Singh and Brijendra under Section 302 IPC for causing death of Babu. Thus, Accused Hari Singh and Heera Singh were convicted for the offences punishable under Sections 302 and 307 IPC, accused Brijendra under Section 302 IPC and Ramphool under Section 307 IPC. These convicted accused were acquitted of all the other charges.

4. The four convicted accused filed Criminal Appeal No. 239 of 1983 challenging their conviction. The State filed an acquittal appeal against the 17 accused who were completely acquitted and also against the acquittal of Accused Ramphool under Section 302 IPC Leave to appeal was granted only against some of them but it is not necessary now to refer to that aspect as the acquittal appeal was dismissed by the High Court and that order has become final. The High Court after reappreciating the evidence confirmed the conviction of Hari Singh and Brijendra under Section 302 IPC for causing death of Babu as it found that the evidence against them was quite consistent and sufficient. The High Court acquitted Heera Singh as it found that his name was not mentioned in the F.I.R. and he was falsely implicated as one of the persons who had given lathi blows to the deceased. With respect to the assault on Buddha the High Court held that his evidence suffered from material improvements and, therefore, it was not at all safe to rely upon his evidence for convicting any accused. The High Court, therefore, acquitted all the three accused who were convicted by the trial court under Section 307 IPC The High Court also disbelieved the evidence with respect to the third incident, namely, accused going to the house of Babu and taking away his gun and belt of cartridges after causing some injuries to his wife Bishni.

5. The learned Counsel appearing for the two appellants, whose conviction under Section 302 has been confirmed by the High Court, submitted that the High Court failed to appreciate that the F.I.R. (Exh. p-1) could not have been recorded at 6.45 A.M. in view of certain admission made by P.W. 1 Harbhajan and that in all probability the complaint against the accused was recorded after a complaint was given by Accused Gopal against Babu, Harbhajan, Buddha and others at the Bayana Police Station with respect to the same incident. He also submitted that the courts below failed to appreciate that Exh. D-5 was the first information in point of time and the investigation should be deemed to have started on the basis of the said information and, therefore, Exh. P-1 could not have been treated as F.I.R. It was also contended that P.W. 3 Bharosey was not an independent witness and, therefore, it was not proper to convict the appellants relying upon the evidence of two interested witnesses only. It was also contended that the courts below committed an error in not believing the defence of the appellants that injuries were caused by them in exercise of their right of private defence, particularly when it was proved that Accused Hari Singh had received two injuries on his person during that incident and one of them was a fracture. Lastly, it was contended that the evidence does not justify their conviction under Section 302 IPC and, therefore, their conviction under that Section is improper and illegal.

6. After going through the evidence we find that there is no substance in any of the contentions raised on behalf of the appellants. The first incident, that is, the assault on Babu took place at about 6 A.M. according to the prosecution evidence. Even in the cross-complaint filed by Accused Gopal time of the incident was mentioned as 6.A.M. though his version about the incident was different. It was submitted that P.W. 1 Harbhajan in his evidence has stated that after the accused left he took his brother Babu to the hospital, then went to the house of Chandra Shekar, got a complaint regarding the incident prepared and then went to the police station and therefore considering the time that would have been taken in doing all these things and distance, Harbhajan could not have reached the police station at 6.45 A.M. The evidence discloses that the police station was only two furlongs away in the eastern direction from the place of the incident. The hospital to which Babu was taken by Harbhajan was on the way to the police station. Though it was brought out in his cross-examination that house of Chandra Shekar was about 500 to 600 yards away from the hospital no attempt was made to elicit in which direction it was situated. If the hospital and the house of Chandra Shekar were on the way to the police station it is difficult to appreciate how more than 45 minutes would have been taken in lodging the complaint. There was absolutely no reason for the investigating officer at that stage to put incorrect time in the F.I.R. Another fact which appears from the F.I.R. is that it was registered as Crime No. 230 of 1981. The complaint which Accused Gopal gave was registered as Crime No 231 of 1981. Thus the complaint of Harbhajan was registered earlier. The complaint Exh. D-5 was taken down by the investigating officer after going to the hospital. For all these reasons, it cannot be said that F.I.R, Exh. P-1, was not first in point of time. The courts below, therefore, rightly treated Exh. P-1 as the F.I.R. and committed no error in relying upon the same for the purpose of corrobration.

7. After going through the evidence of eye witnesses we find that the courts below have not committed any error in appreciating their evidence which would justify interference by this Court. We find that the names of P.W. 2 Mathalli and P.W. 3 Bharosey were mentioned in the F.I.R. (Exh. p-1) which was recorded within a short time. As stated earlier Mathalli did not fully support the prosecution and was declared a hostile witness. He however did depose about the presence of appellants Heera Singh and Brijendra and giving of lathi blows by them to deceased Babu and also about presence of P.W. 3 Bharosey at the time of the incident. He was in no way connected with deceased Babu or P.W. 1 Harbhajan nor did he have any enmity with the appellants. P.W. 3 Bharosey's statement was not recorded on the same day but was recorded on 14.8.91. According to the investigating officer he could not record his statement earlier because he was not available when he had tried to contact him. Relying upon the statement of P.W. 3 Bharosey that during all those days he was in Bayana and not gone out, it was submitted by the learned Counsel that the said explanation is false and that Bharosey was falsely put up as an eye witness. As stated earlier name of P.W. 3 Bharosey was mentioned in the F.I.R. and therefore it is not possible to accept the contention that he was a got up witness. Merely because the witness did not go out of Bayana town it cannot be said that he was available all the time and that the investigating officer was not telling the truth when the stated that he was not available when he had tried to contact him. It was also submitted that P.W. 3 Bharosey was closely related to deceased Babu and thus was a highly interested witness and, therefore, no reliance should have been placed upon his evidence without independent corroboration. In his cross-examination he denied that father of Harbhajan and Babu was his real uncle. No attempt was made thereafter to establish his relationship with deceased Babu or Harbhajan. The fact that the houses of deceased Babu, P.W. 1 Harbhajan, P.W. 3 Bharosey were situated in the same complex, by itself, cannot lead to an inference that he was a partisan witness. Even Babu and Harbhajan were living in separate houses though in the same complex. It was not even suggested to P.W. 3 Bharosey that he was staying jointly with Harbhajan or Babu. Therefore, not much weight can be attached to the statement of P.W. 2 Mathalli that Bharosey was living in the same house in which Babu and Harbhajan resided. What the witness really meant was that he was living in the same complex. Therefore, Bharosey cannot be said to be an interested witness as no other connection has been established between him and deceased Babu and Harbhajan. The courts below were, therefore, right in placing reliance upon the evidence of P.W. 1 Harbhajan as it was corroborated by the F.I.R (Exh.P-1) and also by the evidence of P.W. 2 Mathalli and P.W. 3 Bharosey for believing the presence of the appellants at the scene of the offence and the role played by them.

8. The accused including the appellant had pleaded right of private defence by alleging that on the date of the incident at about 6.A.M. near the house of one Amar Singh, Babu Harbhajan and his sons had attacked Gopal with lathis. Babu had a gun with him. While Babu was loading his gun with a cartridge Accused Gopal gave a lathi blow to him with the result that the gun fell down. Hearing his shouts Hari Singh, Rattan, Jagga and others had come. Hari Singh tried to save Gopal and while doing so he himself received some lathi blows from Harbhajan and his sons. The High Court and trial court rightly did not believe this defence version in view of large number of injuries on the person of Babu and absence of any material to show that the accused had received injuries during this incident.

9. It was lastly contended by the learned Counsel for the appellants that in absence of any evidence as to who had caused fatal injuries to deceased Babu none of the two appellants could have been convicted substantively for the offence punishable under Section 302 IPC The evidence of the eye-witnesses is that appellant No. 1 Hari Singh had given lathi blows on the head of the deceased. The medical evidence discloses that skull of Babu was fractured and the internal injuries which he had received in his brain were by themselves sufficient in the ordinary course of nature to cause his death. Appellant No. 1 was, therefore, rightly convicted for the offence punishable under Section 302 IPC Appellant No. 2 according to the evidence of the eye-witnesses, had given stick blows on the legs of the deceased. Though the eye-witnesses have also stated that some more blows were also given by him to Babu after he has fallen down they have not stated on which part of the body those blows were given. Thus, there is no clear evidence on record to show that Appellant No. 2 had caused a fatal injury. Therefore, conviction of Appellant No. 2 under Section 302 cannot be sustained, However, his participation in the murderous assault on Babu along with Appellant No. 1 is proved beyond any doubt and, therefore, he would be guilty under Section 302 read with Section 34 IPC. Therefore, his conviction will have to be altered from Section 302 to Section 302 read with Section 34 IPC However, the order of sentence imposed upon him is confirmed.

10. In the result the appeal is dismissed subject to the modification stated above. The appellants were ordered to be enlarged on bail by this Court on July 23, 1987. Therefore, they are ordered to surrender immediately to serve out the remaining sentence.