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Daya Ram and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 83 of 1980
Judge
Reported in1984WLN(UC)1
AppellantDaya Ram and ors.
RespondentState of Rajasthan
Excerpt:
criminal trial - appreciation of evidence--material omission in fir or in statements recorded under section 161 cr. p.c.--held, it will have a great weightage.;if any material omission is made in the first information report as well as in the statement recorded under section 161, cr. p.c. after the first information report, it will have a great weightage in the matter of appreciating the evidence of that witness also.;(b) penal code - section 323, 149 & 304 part ii--both parties claiming title over land and cultivating it--no right of private defence & it is a case of free fight--k inflicting head injury had knowledge that it is likely to cause death--held, his conviction under section 323/149 & 148 is maintained--he is also convicted under section 304 part ii.;both the.....d.l. mehta, j.1. this appeal is directed against the judgment of the sessions judge, bhilwara dated january 29, 1980 in nessions case no. 57 of 1978 convicting the appellants daya ram, nanu. kalyan and onkar under section 147, 447, 323, 149 and 302 read with section 149 i.p.c. and convicting the appellant, khumana under section 148, 457, 322 read with section 149 302 and 149 i.p.c.2. the prosecution story unfolded during the trial is that deceased suraj mal purchased field nos. 646 and 647 situate in village gandpura from godu son of kalyan for a sum of rs. 2, 400/-vide registered sale-deed. it has also been urged by the prosecution that deceased suraj mal, who was cultivating the land, was in possession of the field at the relvant time. it his further been contended by the prosecution.....
Judgment:

D.L. Mehta, J.

1. This appeal is directed against the judgment of the Sessions Judge, Bhilwara dated January 29, 1980 in Nessions Case No. 57 of 1978 convicting the appellants Daya Ram, Nanu. Kalyan and Onkar under Section 147, 447, 323, 149 and 302 read with Section 149 I.P.C. and convicting the appellant, Khumana under Section 148, 457, 322 read with Section 149 302 and 149 I.P.C.

2. The prosecution story unfolded during the trial is that deceased Suraj mal purchased field Nos. 646 and 647 situate in village Gandpura from Godu son of Kalyan for a sum of Rs. 2, 400/-vide registered sale-deed. It has also been urged by the prosecution that deceased Suraj Mal, who was cultivating the land, was in possession of the field at the relvant time. It his further been contended by the prosecution that the accused-appellants and nine others committed the criminal trespass with an intention to dispossess the deceased Suraj mal from the field. It has further been urged that all the accused person & attacked one Suraj Mal & his son with lathi weapons. It has further been stated that Khumana gave a fatal blow on the head of the deceased, Suraj Mal. Suraj Mal scumbbed to the injuries. The learned Sessions Judge, Bhilwara, during the trial found the present appellants guilty and convicted them under Sections referred to above. However, he acquitted other accused, who were charge-sheeted with the appellants, extending the benefit of doubt to them.

3. As far as the question of the presence of the present appellants is concerned, it is not so much in dispute Daya Ram (DW 1) has appeared as defence witness under Section 315, Cr. PC. He has stated on oath that Nanu, Ladhu, Kalyan and Onkar came on the spot to rescue him. Thus, accused-appellant Daya Ram (DW 1), in addition to him, admitted the presence of Lachu, Nanu, Kalyan and Onkar appellants.

4. On behalf of the defence, a complaint was lodged at the police station against the complainant side, which is marked as Ex. D/9, to show hit the complainant side attacked on him and his party. It will not be out of place here to mention (hat originally, the first information report was lodged by Daya Ram (DW 1) accused-appellant in which he has named that Khumana also came to the spot to rescue him. Thus, Daya Ram (DW I) has admitted the presence of five persons except Khumana in his statement recorded under Section 315, Cr. PC. He also admits the presence of Khumana in Ex. D/7, the counter first information report lodged by him at police station, Shambugarh. All the witnesses have named Khumana as a person who has infliced a fatal blow on the head of the deceased. In the first information report (Ex. D/7), which has been lodged on the same day at 4.30 P.M. names of all the present six appellants have been specifically mentioned that they have participated in the commission of crime. Amba (PW. 1), Uma (PW. 2), Onkar (PW. 3), Mewa (PW. 5), Harji (PW. 6) and Nanga (PW. 7) have consistency named that all the six appellants were present and they have participated is the commission of crime. Presence of these witnesses have been admitted by the accused-party even in the cross complaint, which they lodged against tae complainant side. Thus, find that the presence of all the six appellants at the time of occurrence has been established beyond reasonable doubt by the prosecution. Apart from that, except Khumana, the presence of all the accused-persons have beed admitted even by the accused side. Khumana is said to be the author of the fatal injury and it seems that his name has been deleted intentionally by Daya Ram (DW. 1) in his statement. This fact is evident that the name of Khumana also finds place in the counter first information report lodged by Daya Ram (DW. 1). Accused-appellants Daya Ram and Nanu hive purchased the disputed property vide unregistered sale-deed executed by Godhu on December 20, 1963.

5. To find out who was the aggressor, it is necessary for us to determine whether the complainant side was in possession of the disputed field Nos. 646 and 647 or not Accused-appellants have come with a clear case that originally, the field belonged to Kalyan, who is appellant before this Court. The prosecution has also admitted this position that Kalyan was the original owner of the field in dispute. It was submitted by the accused-appellant that since December 23, 1963, they are in possession of the disputed property under the sale-deed Ex. D/11. To substantiate this fact, they have also produced the receipt Ex. D/6, which is in the name of original owner, Kalyan. They also took the support of Ex. P/19, the 'Girdavari' for the Samvat Year 2034. Appellants submitted that in the year Samvat 2034. Nanu ton of Daya Ram was in possession of the field, and for this reason, the name of Nanu is shown in column No. 16. Learned Sessions Judge has not accepted the submissions made by the appellants and has held that the complainant side was in possession of tie field.

6. Ex. P/1 is the registered sale-deed, which has been executed by Godu son of Kalyan and Kalyan son of Jayram in favour of the deceased, Suraj Mal This sale-deed has been executed by the appellant, Kalyan in favour of the complainant side on March 3, 1972. Subsequently, an application for mutation in the favour of Suraj Mal was accepted and mutation was entered on January 4.1977 in favcur of Suraj Mal deceased. In 'Jamabandi' the name of Suraj Mal ex 'Khatedar' is shown & prosecution has produced Ex. 14 and 15 to show that in the revenue records, Suraj Mal has been shown as 'khatedar'. The mutation has also been produced and marked as Ex. P/16.

7. It seems that accused party was aggrieved and in the year 197/ Suraj Mal filed a suit for perpetual injunction against Godu, Kalyan, Daya Ram, Nanu and Khuman, who are the present appellants in this case. It was submitted in the suit that the complainant side Suraj Mal and his son are in possession of the field Nos. 646 and 647 and on January 23, 1977. accused-party wanted to commit the trespass and attacked them. A prayer for perpetual injunction prohibiting the accused-party from entering the field was made in the suit. An application under Section 212 of the Rajasthan Tenancy Act was also submitted by Suraj Mal, deceased. An ex-parte, temporary injunction was issued against most of the accused appellants. After hearing both the parties, the exparte injunction was confirmed on 14.12.77. Agrrieved with the order dated 14.12.77, the present appellants Godu, Kalyan, Daya Ram, Nanu and Onkar have preferred an appeal before the revenue appellate authority. The revenue appellate authority, vide its judgment dated 7.4.78. accepted the appeal of the present appellants on the ground that Sub-Divisional Officer has not passed a speaking order, remanded the case back to the SDO for fresh decision and set aside the order dated 4-12-77. A copy of the judgment dated 7-4-78 of the revenue appellate authority has been produced by the appellants during the trial and has marked as Ex. D/8 The position as it emerges after setting aside the order dated 7-4-78, is that the order which has been passed ex-parte prior to the order of confirming the temporary injunction, is revived. Thus, the temporary injunction order was in force. However, the question remains what was the nature of temporary injunction. The ex-parte the temporary injunction or the final temporary injunction passed by the revenue courts has not been produced before as. The temporary injunction may be that the status quo as it existed on the date of passing of order should be maintained by both the parties. The temporary injunction may be of the nature, by which a direction is given to the appellants not to interfere with the peaceful possession of the complainant party, if any. Without looking into the temporary injunction order, it will not be possible to correctly interpret the order and to base the finding on it. For this reason, we may take the view that the tempo party injunction order may be of a nature by which the appellants might have been directed to maintain the status quo and not to disturb the status quo. The order, which has been produced by the appellants, goes to show that there was a dispute and in that dispute the ex-parte injunction was issued against the present appellants and the ex-parte injunction was revived after passing of the order dated 7-4 78.

8. Apart from that, from the perusal of Exs. P/14 and Ex. P/15, 'Jamabandi' as well as Ex. P/18, 'Gast Girdavan' deceased Suraj Mal is said to be in possession of the field. The possession of the deceased Suraj Mal has been entered in 'Gast Girdavari'in the years Samvat 2031, 2032 and 2033. In 'Gast Girdavari' from the years Samvat 203, 2032 and 2033, the possession of Suraj Mal has been shown. If we read these entries with Ex. D/8 then we find that ex-parte temporary injunction was in force against present accused-appellants even long before the incident took place. It seems that present appellants thought that Ex. D/8, the order passed by the revenue appellate authority is in their favour, and as such they wanted to take the advantage of the said order. The order Ex. D/8 does not create any right in favour of the present appellants, it only restores the position, which was prior to the date of confirmation of the ex-parte temporary injunction. The order dated 14-12-77 has been set aside, and thus, the position is that the temporary injunction was in force against the five appellants. However, the temporary injunction order is not on the file and it will not be possible for us to take the view that the present appellants were restrained from interfering with the possession of Suraj Mal. We are of the view that in the absence of the order it should be presumed that the present appellants were directed not to disturb the status quo as it existed on the date of the passing of the temporary order.

9. Learned Counsel for the appellants has invited my attention to the statement of Bhanwarlal, Patwari, (PW. 15). He has stated that Suraj Mal deceased was originally in possession of the disputed field. He has further stored that in the 'Girdavari' for the year Samvat 2034, he has mentioned the possession of Nanu son of Daya Ram, present appellant. Thus, he submits that when he went on the spot, he found the Rabi crop and entered the possession of Nanu that filed is in his possession However, in the cross-examination, he has stated that Naib Tehsildar entered the possession of Suraj Mal and corrected the entry. He has further stated that he was present when Naib Tehsildar corrected the entry. The relevant correct d entry is not before us. The statement of Bhanwar Lal (PW 15) is also ambiguous on the point of year of correction whether he states for Samvat year 2034 or any preceding year is also not clear. Bhanwar Lal (PW 15) has been cross-examined at length by the learned Counsel for the accused. 1 he statement of Bhanwar Lal (PW. 15) does not inspire confidence, specially in the light of Exs. P/14 P/'5, P/18 and Ex. D/8 and other documents Generally, when the possession of the other party is recorded, the enquiry is being made from Khatedar-tenant. In the instant case, Bhanwar Lal (PW. 15) has not made any equiry while making an entry in the year Samvat 2034.

10. Apart from that, Suraj Mal has been shown as 'Khatedar' in the Samvat Years 2032 and 2033 and the possession of Suraj Mal has also been shown. The question which needs consideration whether Suraj Mal was dispossessed ft all or not? The order dated 7-4-78 of the Revenue Officer, Udaipur clearly shows that Suraj Mal filed a suit and obtained a temporary injunction against the present appellants in Samvat Year 2033. The ex parte injunction order was issued and was confirmed on 14-12-77. in such circumstances, the staff ment of Bhanwar Lal does not inspire full confidence as far as the entry relating to year Samvat 2034 is concerned. The suit had been filed in Samvat Year 2033. The fact remains that the suit was filed in the month of June, 1977 between the parties and both the parties were claiming that they are in possession of the field. Both the parties were litigating. The revenue appellate authority set aside the order of the Sub-Divisional Officer dated 14-12-77 on the ground that the clear finding about the possession has not been given by the S.D.O. Thus, it is clear that there was dispute about the possession and ownership, and both the parties were contending that they are in possession of the field. Ex. P/19, the entry for the Year Samvat 2034, is not sufficient to establish the possession of the accused-appellants, specially in the light of the fact that the temporary injuuction was granted in favour of the complairant side ond 'Gast Giradavari for the S. Ys. 2032 & 2033 was in favour of the complainant side. We are not in a position to hold that the accused persons were m possession of the field at the rekvant time. The preponderance of probability goes to show that there was a dispute relating to fields and both the parses were litigating.

11. The first information report has been lodged on June 23, 1978 at 4.30 p.m. Learned Counsel for the accused-appellants has vehemently submitted that in the first information report, the overt act of any of the accused has not been narrated. He submits that Mawa (PW. 5), who is eye witness of the occurrence, should have stated the facts. The first information report is omnibus as far as the overt act of any of the accused is concerned, in the first information report only it has been mentioned that all the fifteen accused-persons came and gave beating to the complainant side and in consequence thereof, Suraj Mal has expired. He has submitted that the incident took place at about 9.30 to 10.00 a.m. and the first information report has been lodged at 4.30 p.m He submits that there is an inordinate delay 'He further submits that all the members of the family have been arrayed as accused and out of 16 persons named in the FIR, 10 have been acquitted and the evidence is of the same nature. He further submits that the first information report is a noncocted one and has been submitted after due deliberations by the complainant.

12. No hard and fast rule can be laid down that minutes detail should be given in the first information report. Mostly, it depends upon the nature of the person who is lodging the first information report. One may say that the incident has taken place, and so and so has been murdered, the other may prefer to give the details. Generally, the Investigating Officer or the Officer who is recording the first information report, interrogates the person who is lodging the first information report to find out the details, if available. In the instant case, the first information report has been lodged at Police Station, Gulabpura, and it was recorded in 'Roznamcha Aam'. A copy of the first information report was sent at Police Station, Shambugarh and the case was registered at police Station, Shambhugarh. The first information report recorded in a regular form is Ex. P/20. It is necessary that the facts constituting the offence should be narrated at the time of lodging the first information report about the offence. The persons feel that their statements will be recorded and they will disclose the details at the time of giving the statements under Section 161, Cr. PC. They want a minimum action by the Police and so they prefer not to give the details at the time of lodging the first information report and they give only such details which are necessary for the purpose of initiating the investigation. In the instant case, the case is of murder and the details have been given that the accused party has given a beating and in consequence thereof, Suraj Mal has died. These facts were sufficient in the ordinary course for taking the investigation in hand. It would have been better if some details, how the quarrel started and who gave the first blow. have been given in the first information report. But, for this reason only, the case of the prosecution cannot be thrown out. What is needed is cautious approach in the matter of appreciation of the evidence while dealing with the overt act of the accused porty.

13. It will not be out of place here to mention that if any material omission is made in the first information report as well as in the statement recorded under Section 161, Cr. PC after the first information report, it will have a great weightage in the matter of appreciating the evidence of that witness also.

14. Learned Counsel for the accused-appellants has argued vehemently that, the accused-appellants had a right of private defence. He has invited my attention to the injury report (Ex. D 3) of Dayaram. He submits that Dayaram sustained three injuries, the details of which are as under:

1. Contused wound. : On head nearly 3 inches above left ear, I have drawn a diagram to show the shape of this wound as also the dimension in my report.

2. Bruise : 2.75' x 2 inches on right fore-arm ulna border above wrist.

3. Abrasion : 0.5 cm. x 1 cm. just behind left ear.

It will not be out of place here to mention that Dr. M.R.A. Siddique (P.W. 4) has opined that injuries No. 2 and 3 of Daya Ram can be self inflicted. He has further opined that injury No. 1 is bifurcated at one end. The 'C' to 'D' portion in the diagram for injury No. 1 of Daya Ram cannot be caused by Kulhari Article 1. He has specifically stated that back portion (hammaring part of Kulhari) is only 1.5', whereas portion 'C' to 'D' is only 2' as per report. He has further opined that Lathi portion as also the back iron portion of 'Kulhari' Article 1 (blunt) cannot cause injury No. 1 of Daya Ram. The case of the defence is that Nanga (P.W. 7) caused injury No 1. Thus, Nanga (P.W. 7) is the author of injury No. 1. It is also an admitted position that Nanga had an article 'Kulhari' with him and he produced it before the police.

15. Learned Counsel for the accused-appellants has also submitted that prosecution witnesses should not be relied upon as they have not explained the injuries caused to Daya Ram. It is general experience that witnesses do not disclose the injury caused by them to avoid the rigour of law At the most they say that the opposite party also sustained the injury by one way or the other. No one is ready to accept the authorship of the injury. Thus, non-explanation of the injuries sustained by opposite party should be considered in the right prespective. It may be stated that the complainant party is avoiding the explanation with the fear that liability may be fastened upon them. It may also be that during the fight the party may not notice at ail if the injuries are superficial or minor in nature.

16. In the instant case, even if it is assumed that Dayaram sustained the injuries even then they are superficial in nature or at the most of the minor character, which may not be noticed by all witnesses. However, we will take the cautious approach in dealing with the case of the prosecution. We will not like to throw out the case of the prosecution only on the ground that the prosecution has failed to explain the injuries sustained by Daya Ram. Learned Counsel for the appellants has also submitted that the appellants have a right of private defence and he further submits that in the alternative it may be the case of free fight of exceeding the right of private defence. Dealing with the submissions of the learned Counsel for the appellants, we will like to discuss the nature of the injuries sustained by deceased, Suraj Mal and the complainant side. Ex. P/6 is the post-mortem report. Deceased Suraj Mal has sustained the following injuries:

1. Contused wound 4 Cm. x 9/10 Cm. x Scalp deep on head nearly 12 Cm. about left ear.

2. Contused wound 1.5 x 1 x 1 Cm. Right elbow posterior aspect.

3. Bruise: - Right elbow 10 x 6 1/2 Cm. postero-lateral aspect.

4. Abrasion--1.5 x 0.5 Cm. left thigh nearly II Cm. above knee antero-lateral aspect.

5. Bruise: - 6 x 6 Cm. Right temple.

6. Bruise: - 11 x 5 Cm. heed left side antero-posterior direction.

7. Abrasion: - 0.5 x 0 5 Cm. below bridge of the nose.

8. Bruise: - Left lower arm 5x4 Cm. post aspect just about wrist.

9. Bruise: - 20 x 11.3 Cm. Left elbow post aspect and exending upwards in upper arm and down wards in lower arm.

10. Abrasion: - 2 x 3/4 Cm. Rt. hand posterior aspect nearly 3 Cm. above base of first finger.

11. Depressed Fracture: - Left parietal bane outer table depression 6.5 x 2.5 Cm. inner table fractured obliquely in the middle.

12. Right parietal bone fractured in the anterior half obliquely. All injuries were ante-mortem and caused by blunt objects.

The cause of death is compression of brain due to haemorrhage from left middle marginal artery due to repture due to fracture of parietal bones caused by heavy force by blunt object. The nature of the injuries shows that this is not an act of one person. Deceased has been given beating from both the sides rights as well as left. Suraj Mal sustained five injuries on the head. Injuries No. 11 and 12 are grevious in nature, while other three injuries are simple. Injuries No. 5 and 6 are bruise and injury No. 1 is contusion wound 4 cm. x 9/1 cm. x scalp deep in Head Nearly 12 cm. above left ear. Thus, from the persual of the injuries, it is clear that victim was attacked by more than one person. Amba (PW. 1) has sustained three injuries referred to above in Ex. P/7. lima (PW. 2) has also sustained two injuries, which are simple in nature.

17. Amba (PW. 1) has been examined and he has stated that Khuman has a 'Kulhari' in his hand and rest of 10 accused-persons had lathies in their hands. He has further stated that four women-accused had 'Kassiya' in their hands. He further stated that all the accused-persons came and Onkar inflicted a lathi blow on his head. On seeing his father, deceased Suraj Mal rushed towards him and asked not to give beating. Thereupon Khuman inflated an injury by axe on the head of the deceased Suraj Mal. He further stated that after receiving head injury by Khuman, his father fell down and, thereafter, all the persons started giving beating. He further stated that accused Kalyan and Ladu also inflicted injuries. He further revealed that on his crying, other witnesses of the complainant side came on the spot. He admitted that his father filed a suit against the accused party and the suit is pending. He further amitted that at the time of the 'Gast Girdavari', there was no person on the field. He further stated that Khuman gave an axe blow on the head of his father from a distance of about 5 feet. He further stated that Khuman inflicted the axe blow to his father. He further stated that he was at a distance of about 2 to 3 paundas when Khuman inflicted the injuries. Thus, he only explained injury No. 1, which has been caused by Khuman at the initial stage and thereafter, he does not say about the nature of the injuries sustained by deceased Suraj Mal. It is also an admitted position that accused Daya Ram is also having field nearby the disputed land.

18. Uma (PW. 2) has been produced by the prosecution as a witness and he supports Amba (PW 1). He has stated that Onkar inflicted a lathi blow on the head of Amba; Suraj Mal intervened and accused Khuman gave an axe blow from the tack side. He further stated that all the accused thereafter, inflicted injuries to Suraj Mal. He is not in a position to give the details about any other injury. He has further stated that when Mewa, Onkar and Harji told the accused party that Suraj Mal had already died why you are inflicting injuries, thereafter, all the accused left the place of occurrence and and Nanga snatched an axe from the hand of Khuman.

19. Onkar (PW. 3), who is also injured person, has stated that the accused party came at the field of Onkar and gave a blow on the head of Amba and, thereafter, Suraj Mal interveved. Accused Khuman gave a blow from the blunt side on the head of the deceased. He has stated that he was standing at a distance of about 15 to 20 paundas and after hearing the cry as well as seeing the incident, he came on the spot. Mewa (PW. 5) is the person, who has lodged the first information report. He has stated that Suraj Mal came on the field. He was ploughing the field at the time when the accused party came on the spot and Onkar inflicted a blow on the head of Nanu. He narrates the same incident which had been narrated by the other witnesses referred to earlier. He has also stated that Nanga snatched the axe from the hand of Khuman while they were returning. This witness has been confronted with his statement as well as the first information report. He has been asked why you have not stated that Khuman inflicted the blow on the head of the deceased Suraj Mal. He has also been confronted why you have not narrated in the first information report that Onkar has inflicted a blow on the head of Nanu. The witness has stated that he has narrated all the facts, but he is not in a position to say that why the facts have not been narrated in the first information report and the police-statement.

20. Learned Counsel for the appellants has vehemently submitted that occular evidence of these witnesses should be rejected on the ground that first information report, which has been lodged by Mewa (PW. 5), the detail of incident has not been given and even the material fact that at the initial stage, Onkar gave a lathi blow on the head or Nanu and Khuman gave the axe blow on the head of Suraj Mal, has not been mentioned. Thus, there is a material omission and which amounts to the contradiction. He further submits that ail the witnesses have deposed that Nanga snatched the axe from the hand of Khuman while they were going. According to prosecution version, the case is that all the accused-persons were going, who were 15 in number, Nanga was coming and he snatched away axe from the hand of Khuman in the way. This fact has also not been mentioned in the first information report. Conduct varies from man to man & it cannot be said that it is not possible. There may be a possibility that Khuman and Nanga might not be on enmical terms and Nagar might be capable enough in snatching the axe from the hand of Khuman. This fact has not been mentioned in the first information report. The testimony of the witnesses cannot be rejected.

21. It is an admitted position that the incident has taken place and Suraj Mal has been inflicted an injury on the head as well as other vital parts of the body. Suraj Mal differed also in consequence of those injuries and in that quarrel, Nanga and Uma have also sustained minor injuries. Daya Ram, who is present appellant, has appeared in the witness-box and has accepted that the quarrel took place and the complainant side attacked on them.

22. After giving considered thought in the matter, we are of the view that there was a dispute about the property and parties were litigating in the court of law. Both the perties wanted to cultivate the field in dispute and force was med by them. As we have already held that Ex. P/19 cannot be relied upon to the extent to hold that the accused-appellants were in possession of the field. There was a dispute about the property and both the parties were acting in a way by which they wanted to cultivate the land and during that course, the incident has taken place. It is a case of free fight between the parties to establish the right on the field and for that purpose they have used the force. As far as accused Khuman is concerned, we hold that he has inflicted a blow on the head & it is difficult to hold that Khuman was the author of the any particular injury. As far as other accused are concerned, they had the common object of cultivating the land and far that purpose they have participated in the commission of the crime. As far as Onkar is concerned, a simple injury on the head of Amba has been attributed to him. It has also been stated that Onkar has also inflicted a lathi blow on Ugma. As far as other accused are concerned, no specific overt act has been alleged and there is a vague statement that all of them inflicted blows on the deceased Suraj Mal. Learned Counsel for the accused appellants has submitted that all the persons acquitted except Khuman are on the same footing. He submits that in the FIR as well as in the statements of all the prosecutions witnesses, same story has been narrated and the case of the present appellant except Khuman and others acquitted, is not distinguishable.

23. Learned Public Prosecutor has submitted that though in the prosecution evidence part assigned to the present appellant except Khuman is not distinguishable from the persons who have been acquitted. However, he points out the distinguishing feature that Daya Ram (DW. 1) one of the appellants had appeared in the witness-box as a defence witness and has stated that all the five persons were present at the time of occurrence. He has also invited my attention to Ex. D/7, the first information report lodged by the accused-party and the complainant side Ex. P/20 are relevant and can be used for the purpose of appreciating the evidence. Daya Ram (DW. 1) has accepted the presence of all the accused-appellants. He submits that though there is an omnibus statement but looking to the nature of the injuries, it cannot be said that all the injuries sustained by deceased Suraj Mal can be attributed to one person. He submits that though there is an omnibus statement that all the 15 persons assaulted with lathis and Kassiyas, but the presence of other persons have been doubted by the court below. He submits that the persons who were present can only be attributed to, the injuries sustained by deceased Suraj Mal. As far as Khuman is concerned, he submits that though in the first information report role of Khuman has not been stated, but there is a consistent statement of all the witnesses that Kuman inflicted one blow on the head of the deceased with blunt side of the axe.

24. Mr. Bhandari, appearing on behalf of the appellants, has submitted that the evidence relating to Khuman should also be discarded as in the first information report, which has been lodged by the eye witness Mewa. The material fact has not been stated and for this reason, Khuman stands also on the equal footing with the persons who have already teen acquitted. Mr. Bhandari, in the alternative, submitted that at the most it can be a case of free fight. He submits that if the court comes to the conclusion that the accused-party was not in possession of the field then the position will be that complainant side and accused side were putting their claims on the disputed property and were trying to cultivate the land.

25. We have given considered thought to the submissions made by both the learned Counsel for the parties. We have already held that it cannot be said that the accused were in possession of the disputed property. We have also given a finding that the dispute existed and both the parties were claiming under a bonafide title and were trying to cultivate the land during that fight ensued. Looking to the facts and circumstances of the case, it cannot be said that it was a case of right of the private defence. As we have already given a finding that both the parties were trying to cultivate the land and fight ensued. Hence, we hold that it is a case of free fight. One injury on the head has been attributed to Khuman. The rest of the injuries have not been attributed to any of the appellants. We hold that Khuman is responsible for the head injury. Though there are four injuries on the head and it cannot be said that for which particular injury Khuman was responsible. Khuman has inflicted the head injury and it can safely be said that he had the knowledge that the injury which he is inflicting is likely to cause the death of deceased Suraj Mal. As far as the rest of the accused-persons are concerned, they can be held only responsible for the injuries sustained by Suraj Mal on non-vital parts which are simple in nature.

26. We partly allow the appeal, set aside the conviction of all the appellants under Section 302 read with Section 149, IPC. We set aside the conviction of Khuman also under Section 302 read with Section 149, IPC. The conviction of all the accused under Section 447, IPC is also set aside. The conviction of accused Khuman in under Section 148 and 323 read with Section 149, IPC is maintained. He is further convicted under Section 304 Clause (2) and sentenced to undergo rigorous imprisonment for a period of six years. The conviction of accused Djya Ram, Nanu, Kalyan, Ladu and Onkar is not maintained under Section 147, IPC. They are further convicted under Section 323 read with Section 149, IPC. They are sentenced to rigorous imprisonment for a period of one year under Section 323 read with Section 149, IPC. All the sentences awarded under various Sections shall run concurrently and accused-appellants shall be entitled for the set off under Section 428 Cr. P.C.


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