Decided on January 03,1984

DAYA RAM Appellant


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 and attacked one Suraj Mal and 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.
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.

(3.)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.

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