Ahmed Mohiuddin Ansari, J.
1. Narayan, Balaji and five others were challaned for the murder of Kondaji under Section 243, Hyderabad Penal Code corresponding to Section 302 of the Indian Penal Code, and were committed to the Aurangabad Sessions Court which after a trial acquitted Bhikaji accused No. 6 and convicted the remaining six accused under Section 244, Hyderabad Penal Code, that is, culpable homicide not amounting to murder and awarded five years' rigorous imprisonment to accused No. 7, and ten years' rigorous imprisonment to the remaining accused under Section 244, Hyderabad Penal Code, and a further term of two ' years' rigorous imprisonment for causing grievous hurt to Limbaji; and six months' each for causing simple hurt to Dathu.
2. Under the Hyderabad Criminal Procedure Code, this sentence did not require confirmation by the High Court inasmuch as the sentences were to run concurrently and no sentence is above that of ten years rigorous imprisonment. So, we are not hearing this case as that of confirmation of the sentence; but as all the accused have filed separate appeals against the sentences, we are disposing of these appeals together.
3. It was alleged in the challan that the deceased Kondaji and the accused are related to one another and there was a long standing feud between the parties. It is said that on 7.6.1358F., when Kondaji went to the accused Dhanaji's house to give him an invitation in connection with a wedding, all the accused assaulted and belaboured him with lathies and a spear. As Kondaji ran to save his life the accused went in hot pursuit hitting him all the while. Near the Police Patel's house, the deceased fell down and as the deceased's brother Dathu and his father Limbaji came to intervene, they were also belaboured.
4. Thinking Kondaji was dead, the accused dispersed. Kondaji, however, had not died. His brother and the eyewitness took him to his house where after some time the same day he succumbed to his injuries. It was stated by the Police Patel that he himself was an eye-witness of this incident and in order to prevent him from making a report to the Police Station, the party of the accused carried him away to Hingoli and detained him in a garden out of the town, and they themselves went and reported to the Police Station that Kondaji and ills party has assaulted accused No. 7 Dhanaji and they then brought back the Police Patel to the village, some time during the night. The next day, the Police Patel went to Hingoli again and made a report to the Police Station that Kondaji had been killed by Dhanaji and the other accused. The dead body of Kondaji was brought by his relatives to the Police Station at this time.
5. Ten witnesses were produced on behalf of the prosecution, and although the accused had completely denied every knowledge of the incident and their complicity in this affair, they have produced six witnesses to show that some fight between the accused No. 7 Dhanaji and the party of the deceased took place at the house of accused No. 7. Blows were exchanged and as Kondaji ran to his house to bring a sword to finish off Dhanaji, he fell on a heap of stones severely wounding himself and later on succumbed to the injuries.
6-10. I have carefully gone through the evidence adduced by both the parties. (His Lordship went through the evidence of the prosecution and continued.)
11. The learned Advocate for the appellant argues that P.Ws. 2, 3, 4, 5, 6 and 8 are all interested witnesses. According to his argument the fight took place at the house of accused Dhanaji who it Is said was assaulted by the deceased, his brother, his father and D.W. 3, Shanker. He expects us to disregard the evidence of Dathu, Limbaji. Abajj and Suraji Bui on account of their being the relatives of the deceased. The statements of these witnesses were read over to us, but no material discrepancy was shown in the body of their statements, and we do not find the slighest trace of evidence so far as their statements go, which could prove that Laxman and Shanker had themselves complicity in the alleged fight between the two parties. It is stressed on behalf of the accused that the incident took place before the mid-day on the 7th Ardibehist, but the report was made on the 8th and the First Information Report was received by the Court on the 10th. As the Police Station happens to be at the headquarters of the Magistrate the prosecution have not been able to explain why the First Information Report could not be sent to the Court on the 8th of Arditbehisht only. The Police Patel, of course, has explained the delay in making the report and his statement is unshaken. He was carried away from his village to Hingoli and was detained by the accused in the Hjralal garden till they had made their own report and returned to the village. The delay in despatching the First Information Report carried no importance with it, for, one of the accused was arrested an the 9th and the report sent to the Court at once, and if we believe the report of the Police Patel against which there is no reason, the names of all the accused were disclosed to the police at the first opportunity; the inquest panchanama that was held on the 8th also, contain the names of all the accused, and gives in addition the names of the eyewitnesses as well. Mr. Ganu, the Advocate for the appellants argues that this panchanama has only been proved to be prepared and not proved regarding its contents, as is required by law. The witnesses have simply stated that they have signed it, and have not attested the various statements in the body of the panchanama itself. Therefore, no notice can be taken of this inquest panchanama. The argument is sound to a certain extent, but it cannot be overlooked entirely, and the fact remains that the panchanama was prepared on 8th Ardibehisht and was sent along with the First Information Report. Mr. Ganu could not convince us as to the effect of this delay of one day in despatching the First Information Report and the inquest panchanama to the Court.
12. Statements of the prosecution witnesses, particularly those of Limbaji and Suraja Bai and Abaji strike us as very natural unmixed with falsehood, free of exaggeration, and those of Laxman and Shanker as impartial. There seems to be no material discrepancy or weakness in their statements either.
13. Now let us turn to the evidence for the defence. (His Lordship went through the defence evidence and continued.)
14. Here we have got two versions of the same incident. If we believe the version of the defence it comes to this: The deceased and his party were the aggressors and went to Dhanaji's house and belaboured him; and that though Kondaji received injuries in the fight, the real cause of his death was an accident which occurred later at a different place. But the Trial Court has not accepted his version. Mr. Lakshman Rao Ganu, Advocate for the appellants has put forward two grounds which would, if accepted, make the version of the accused preferable and they are that: it is admitted in the challan that the fight started at Dhanaji's house where the deceased, in view of the relations between the parties, had no occasion to go, and that the names of the witnesses for the defence occurred in the list of prosecution witnesses. Than their versions should be more trustworthy.
15. As regards the first point it must be remembered that the prosecution witnesses say that the deceased went to Narayan's house to give an invitation, and Narayan's house is close to the house of Dhanaji accused, so even if it were admitted that the deceased could not have gone to the house of Dhanaji, in view of their bad relations, as Narayan's house is also there, it can be taken that the fight started near the house of Dhanaji, and there is no discrepancy between the challan and the version of the witnesses. The fact that the names of the witnesses for the defence occur in the list of the prosecution witnesses, does not necessarily render their statements more trust worthy, for, their statements have to be judged on their own merits, and when taken as a whole the version of the defence witnesses does not confirm to some proved facts. (After reviewing the evidence His Lordship proceeded:) To my mind, there seems not a bit of doubt, as regards the fact that Kondaji died as a result of injuries received at the hands of the accused; and that they alone are responsible for his death.
16. The third and the last argument of Mr. Lakshman Rao Ganu is that there is sufficient evidence on the record to show that Kondaji and his party was the aggressor and they attacked Dhanaji first, and it was only in self-defence that accused hit Kondaji, his father and the brother. It must be observed that the accused in their statements have totally denied having hit and billed Kondaji, still I agree if there is sufficient evidence to show that their actions come under self-defence, they cannot be denied the benefit of this privilege. But after going through all the evidence I do not feel that evidence warrants the use of this right or privilege. (After going through the evidence His Lordship concluded.) So the right of self-defence even if it were conceded to have arisen, was terminated at Dhanaji's house only, and the chase that the accused gave to the deceased belabouring him all the while was a culpable excess resulting in Kondaji's fall due to fracture of the skull at Laxman Patel's house. This plea, therefore, is likewise unacceptable.
17. In the result the appeals of all the accused are dismissed.
Qamar Hassan, J.
18. I agree with my learned brother that the appeals filed by the accused against their conviction for culpable homicide and other offences should be disallowed. The evidence of the father and brother of the deceased who were also belaboured in their attempt to save the life of the deceased and that of his mother and wife cannot be ignored, merely on the ground that they are interested witnesses. Their testimony is amply corroborated by other eye-witnesses. The Court which recorded the evidence has believed them and in the circumstances of this case I do not see any reason to differ from the Trial Judge in the view which he has taken of the evidence.
19. The hard core of the argument advanced for the appellants was that the appellant must be held to have acted in self-defence and acquitted. No doubt some of the witnesses who were listed for the prosecution have been produced by the defence to show that the deceased, his father, a man of eighty years, and his brother were aggressors. The question which emerges for consideration on this evidence is whether it was sufficient to rebut the case for prosecution. The story as given by these witnesses which my learned brother has analysed falls short of carrying conviction or even creating a reasonable doubt. Therefore I concur with the order proposed by my learned brother.