1.This appeal is brought by Mohindar Singh against his conviction and sentence of transportation for life by Sessions Judge Sardari Lal Madhok and the state has brought an appeal against the acquitial of Rulia who was acquitted by the learned Judge, and on behalf of Meja Singh, a brother of Teja Singh deceased, a petition for revision has been brought for enhancing the sentence of Mohindar Singh and for setting aside the order of acquittal of Kundan Singh and Rulia.
2. The deceased was Teja Singh, a brother of Meja Singh and the occurrence is alleged to be of 1-4-1952 at about sunset in village Nawanpind in the district of Amritsar. The prosecution alleged that there was motive for the occurrence. Ten or twelve days before the occurrence Jassu, who is a brother-in-law of Kundan Singh and Mohindar Singh having married their sister, diverted the water of Meja Singh to his own field. There was a row between Mohindar Singh and Kundan Singh and Jassu, but Gehl Singh and Bishan Singh separated the two. On 1-4-1952 i.e., on the day of the occurrence Teja Singh is alleged to have gone to a well which is near the house of Mohindar Singh and Kundan Singh in order to pass water to which objection was taken by Kundan Singh and Kundan Singh and Teja Singh started grappling with each other and caught hold of each other's long hair. Kundan Singh thereupon shouted and Mohindar Singh and Rulia are alleged to have come -- both armed with spears. Mohindar Singh gave a spear thrust into the chest of Teja Singh and the spear end broke and the spear-head kept sticking in the chest of Teja Singh. Rulia then gave a blow on the thigh ofTeja Singh with his spear alter Teja Singh had fallen down. I may here state that Mohindar Singh had an injury on his back which is stated to be a punctured injury and Kundan Singh had an injury on the back of his head but Rulia had no injury on him excepting abrasions which it is stated he got when he was arrested.
3. Both Teja Singh and Mohindar Singh were taken to the dispensary at Algon. As Teja Singh was in a serious condition his dying declaration was recorded by Suba Singh, the Doctor in charge of the dispensary, at 7-45 p.m. and he died about midnight. Mohindar Singh was taken to the Patti Hospital where he was examined by Dr. Daulat Singh P. W. 2. Kundan Singh was also examined at Patti and the injuries were found to be on their backs.
4. The story for the prosecution was supported by the evidence of motive, eye-witnesses and the dying declaration, the eye witnesses being Shangara Singh P. W. 14, Dalip Singh P. W. 15 and Rur Singh P. W. 16 who are all related fairly closely to the deceased Teja Singh. On this evidence the learned Sessions Judge found that Mohindar Singh wss guilty of murder, but he gave him transportation for life in view of the fact that there was a sudden quarrel. Rulia was acquitted because the learned Judge was not satisfied that he was present and Mohindar Singh has come up in appeal against the acquittal of Rulia, and we have heard Mr. Rai for the accused and Mr. Kartar Singh Chawla for the State.
5. The story as told by the witnesses seems to be fairly simple. There was grappling and catching hold of long hah- between Kundan Singh 011 the one hand and Teja Singh on the other who-had gone twenty-five 'karams' from his house for the purpose of urinating near the well which is-close to the house of the accused Mohindar Singh and Kundan Singh. Kundan Singh then shouted for help. Mohindar Singh came with a spear and so did Rulia, and Mohindar Singh injured the deceased in the manner stated above and Rulia in the thigh of the deceased, but the injury which was caused to Mohindar Singh has not been explained although the injury caused to Kundan Singh was explained by the fact that he fell and his head struck against the parapet of the well. This story does not seem to be correct in its entirety. It appears that when Kundan Singh shouted his relations whoever they were including Mohindar Singh came to the spot and there is no doubt that some helpers of the other side must also have come. The grappling itself seems to have turned into a free fight in which Mohindar Singh gave the fatal blow to the deceased and probably Mohindar Singh and Kundan Singh must have received Injuries at the hand of the relations of the deceased.
Mr. Chawla submits that there is no reason to disbelieve the dying declaration which was made about an hour after the occurrence in which it is definitely stated that Mohindar Singh gave the fatal injury and Rulia caused an injury on the thigh, but there are certain inherent inaccuracies in this dying declaration. Teja Singh stated that there were no brothers or relations of his present excepting Shangara Singh. It is not believable that if auarrels start in the manner that it did, the relations of only one side would come and not the other and that Mohindar Singh would get injured without anybody injuring him. Under these circumstances the case seems to be one of sudden fight and therefore would fall within Exception 4 to Section 300 and therefore the offence of Mohindar Singh would fall under Section 304,Part I and the sentence of seven years would meetthe ends of justice. I would therefore allow thisappeal to the extent of reducing the offence toone under Section 304, Part I and the sentence to oneof seven years' rigorous imprisonment.
6. As to Rulia the learned Sessions Judge hasfound that his presence at the place was doubt-ful. Alter having been taken through the evidenceI do not think that this is a case of compellingcircumstances, as put by their Lordships of theSupreme Court, for reversing the finding of thelearned Sessions Judge, and I am therefore of theopinion that the appeal against his acquittal mustbe dismissed. In view of this the revision petitionby Meja Singh also fails and is dismissed.
(7) DULAT J. I agree.