K.D. Sharma, J.
1. This is an appeal filed by Gotam and Babroo against the judgment of the Additional Sessions Judge, Pratabgarh, dated October 5, 1974, by which each of them was convicted under Section 304 Part II & 447, IPC and sentenced to undergo rigorous imprisonment for seven years on the first count and on the second to suffer rigorous imprisonment for tow moths. The sentences on both the counts were, however, ordered to run concurrently in the case of each appellant.
2. The prosecution case against both the appellants was as follows: Roopa, deceased, had been in possession of a field known as 'Khajurwala' & situated in village Into-ke-Talab, bearing Khasra No. 194/2 for the last so many years. On July, 1978, he accompanied by his son Narayan, his wife Ninduri and his daughter Timuri went to his field and began to sow maize seeds therein. When the deceased and his family were sowing the seeds of maize in their field, the two appellants along with Kana, Hirji, Dhulki and Kankuri, coaccused, who have been acquitted by the trial Judge, entered the filed and asked the deceased not to cultivate the land. When the deceased and his family did not stop sowing the seeds of maize, the two appellants and their associates made a concerted attack on him with the weapons in their hands. Gotam appellant struck a blow on the chest of Roopa, deceaed, with a stick, i.e. 'Parsnia' while Babroo dealt a blow with a 'Parania' on his back. Babroo again caused an injury to the left cheek of the deceased with a stone. Likewise, Karma caused injuries to the back and the hip of the deceased with a stone Hirji also infilcted a lathi blow on the back of the deceased, while Dhulki and Kankuri caused injuries to his legs with stones After the 'Marpit' was over the two appellants and their companions ran away from the place of occurrence. Then Timuri daughter of the deceased was sent to call for her uncle Bhanna, She brought Bhanna to the place of occurrence. At that time Roopa was unconscious and his injuries were bleeding On the next day Roopa succumbed to his injuries A verbal report of this incident was made to the Station House Officer, Dholapani, by Bhanna on July 5 1973 at about 2 p.m. On the basis of the first information report the Station House Officer registered a criminal case under Section 302, IPC and made the usual investigation into the matter. In the course of investigation, Prithvi Singh, Station House Officer went to the place of occurrence and prepared a site inspection memo, a site plan and a Panchnama after inspecting dead body. Narayan produced one turban, and a stone before the Station House Officer which were taken into possession vide memo of seizure Exs. P.5 and P. 4 respectively. Bhania produced one receipt Ex P 7 which also the Station House Officer took into his possession On July 12, 1973, Bhania produced one 'Bandi' and a 'Dhoti' which were taken into possession by the Station House Officer, vide memo of seizure Ex P. 10 On July 7, 1973 the Station House Officer arrested the appellants and the other co-accused, Kanna and Hirji. After his arrest Babroo gave the Station House Officer an information, while in police custody, that he had concealed one 'Parania' in the house of his brother from which it was later on recovered at the instance of Babroo and in pursuance of his information. Gotam appellant also furnished an information to the Station House Officer on July 7, 1973, which led to the recovery of a 'Parania' from his residential house. Likewise, one Parania' was recovered from the roof of Gotam appellant at, the instance of Hirji, co-accused, and in consequence of his information recorded under Section 27 of the Evidence Act. These articles were seized and sealed by the Station House Officer in the presence of Motbirs and were sent to the Chairman, Nyaya Pauchayat. Gomana, for putting them up in a test identification parade The Station House Officer arrested Dhulki and Kankuri, co-accused, also and concluded the investigation On completion of investigation, the Station House Officer filed a charge-sheet against the two appellants and the other co-accused in the court of the Munsiff Magistrate First Class, Pratabgarh, under Sections 147, 148, 302/149 and 447, IPC The learned Magistrate conducted an inquiry preparatory to commitment and, upon finding a prima-facie case exclusively triable by the Court of Sessions, committed the two appellants and 4 others co-accused to the court of the Sessions Judge, Patabgarh, under Sections 148, 447 and 302 read with Section 149, IPC. The leaned Sessions Judge tried the appellants and the co-accused for the aforesaid offences and found the two appellants guilty under Section 304, Part II and 407 IPC only. The other co-accused, namely, Kanna, Hirji Kankuri and Dhulki, were acquitted of the charges framed against them The two appellants also were acquitted of the charges under Sections 302 and 304/ 149 and 148, IPC. Aggrieved by their convictions and sentences, the two appellants have come- up in appeal to this Court, as stated above.
3. I have carefully perused the record and heard Mr. Ganpat Singh Mehta, learned Counsel for the appellants, and Mr. N M. Lodha, Public Prosecutor, for the State. Firstly, it has been contended on behalf of the appellants that the trial Judge committed an error in convicting both the appellants under Section 447, IPC. According to the learned Counsel, it transpires from the prosecution evidence itself that the field, in which the occurrence took place, had been in possession of the appellants and that they had cultivated maize crops therein it was further argued by the learned Counsel for the appellants that the deceased and his party were the aggressions as they committed criminal trespass over the land & uprooted the maize crops shown in it by the appellants. The above contention is not devoid of force. Narayan P. W 1 admitted in his statement at the trial that Gotam had sown maize in the field in controversy before 2 or 3: days of the occurrence and he and his family members including the deceased had uprooted the maize crops sown by Gotam appellant and cultivated the field Narayan was cofronted with his previous statement which he gave before the committing court & wherein he admitted that when they had again cultivated the maize crops, the maize crops sown by the appellant were about 15 days old Likewise, Nanduri P.W. 2 admitted in her cross- examination that at first the deceased and his family members had town maize crops in the land dispute. There-after Gotam appellant uprooted crops sown by them and cultivated the land again by sowing maize. Thereafter the deceased and his party uprooted the crops sown by Gotam appellant inspite of the fact that Gotam requested them, not to destroy his crops and to recultivate field again According to Mst. Nanduri this led to the occurrence Similar is the evidence of Trimuri P W 3. She also admitted in clear and definite terms that on the day of the occurrence the deceased and his party had uprooted the maize crops sown by Gotam in the held under controversy and this led to the quarre1. In view of these admissions, the trial Judge was not justified in holding that the field in dispute was in possession of the deceased and his family members on the day of occurrence From the evidence of Narayan, P. W,. 1, Nanduri, P W 2 and Timuri, P. W 3, this fact well established that on thy day of the occurrence, Maize crops sown by Gotam appellant were standing- in the field under controversy and that those-Crops were uprooted by the deceased and his party despite protest from the. side of Gotam appellant In view, of these facts, I' am reluctant to hold that the two appellants committed criminal trespass on the land with an intention to intimidate, insult, or annoy the deceased and his family members, The appellants, therefore, were not guilty of the offence under Section 447, IPC,
4. As regards the other offence, i.e. calpable homicide not a mounting to murder, punishable under Section 304, Part If, IPC it may be observed that the prosecution could not prove this offence against the two appellants beyond. reasonable shadow of doubt Narayan, PW 1, stated in his desposition at the trial that Gotam appellant inflicted a single blow on the chest of Roopa, deceased, with a 'Prania' i.e. a stick and appellant Babroo dealt a lathi blow on the back of Roopa and inflicted another blow on his left cheek with a ston. Nanduri, PW 2 also deposed in the trial court that Gotam appellant struck a blow on the chest of Roopa, deceased, with a 'Parania' and Bbroo gave him a blow on his left hand with a stick. Thereafter, several other blows were dealt on his body by the appellants and their companions. Timuri PW 3 merely stated that Gotam infficted, a blow on the chest of Roopa with 'parania' while Babroo appellant struck a blow on his left hand with a stick. She did not say that several other blows were dealt with on, her fathers body by the two appellants. Another eye-witness Bakla, PW,4, merely stated that the two appellants and Hirji were beating Roopa deceased. He could not tell with what weapon the two appellants and Hirji were beating-the deceased as he claimed to have seen the occurrence from a long distance. Hence, from the evidence of these eye- witnesses it has been merely established that Gotam strurk ablow on the chest of Roopa with a 'Parania' while-Babroo appellant gave him a blow with a 'Parania' which fell on his head and further struck a blow on his left cheek with a stone. It will not be out of place to mention that injuries Nos. 1 and 3 found on the chest of Roopa deceased were simple in nature as is evident from the statement of Dr. Raj Mal. The Doctor, however, opined that the injury on the lower jaw resulted in causing fracture of the mandible 2' towards the right side and further caused dislocation of right incisors first and second, rights canian and first promolar tooth. The Doctor, however, did not find any injury on the left hand of the deceased. Hence, in view of the evidence of the Doctor, the only injury that could be attributed to Babroo appellant was the injury to the lower jaw causing fracture of mondiole and dislocation of teeth of the deceased, The Doctor definitely opined that the death of Roopa deceased occurred on account of injury No. 5 which cursed fracture of third and fourth cervicle vertebrae joint. Injury No. 5 is d-scribed by the Doctor as bruise 5'x4' on the back of the neck on mostly toward right side and its middle, There was ecirpmosis under the issue which was highly swolten. the eye-witnesses ascribed this injury to Hirji, co-accused, who has already been acquitted by the trial Judge. Consequently, in the absence of cogent and reliable evidence that fatal injury No. 5 was caused to the deceased by either of the two appellants, it is very difficult for me to hold the appellants responsible for causing it. Of course, the prosecution has led reliable evidence to prove that Gotam appellant caused a single injury to the chest of the deceased, while Babroo appellant inflicted a blow on his left cheek a stone which fractured the mandible front second' line 2'' towards the right side. In my opinion, Gotam and Babroo appellants were guilty for the offence, punish able under Sections 332 and 325, IPC respectively.
5. As regards the sentence under Sections 323 and 323, IPC, I may observe that the two appellants were arrested on July 7, 1973 and released on January 22, 1975, when their sentences were suspended by this Court. Both of them were convicted and sentenced by the trial Judge on October 5,1974 and since then they have- already undergone rigorous imprisonment for 31 months. Prior to their conviction, they had undergone detention for a period of about 1 year and 3 months. Taking all this into consideration, I am of the view that the ends of justice would be met if their sentences are reduced to the term already undergone by them.
6. Consequently, I partly accept the appeal filed' by Gotam and while acquitting him, of the offence under Section 447 IPC alter his conviction from wider Section 304 Part If to one under Section 323, I PC and reduce his sentence to the term already undergone by him Further, [ partly accept the appeal filed by Babroo and while acquitting; him of the offence under Section 447 alter his conviction from under Section 304 Part II to one under Section 325, IPC and reduce his sentence to the term already undergone by him. Bath the appellants are on bail and need not surrender to their bail bonds which, are hereby cancelled.