Harjit Singh Bedi, J. - (1.) This judgment will dispose of Criminal Appeal Nos. 82-83 and 778 of 2005. The facts have been taken from Criminal Appeal No. 778 of 2005.
(2.) As per the prosecution story, PW Prabhu Koli and his brothers had mortgaged 5 bighas of land comprising Khasra No. 250 to PW-1 Raghuveer Singh several years earlier to the incident. At about 2 p.m. on the 7th August 1997, Raghuveer Singh alongwith Chhotey Lal, Rajendra, Munshi and Girdhari were in the process of ploughing the land when the accused, Kallu, Kamru, Taiyab and Rahmat reached that place on two tractors and also started ploughing the same land. Raghuveer Singh protested at this intrusion on which they attempted to run him over with their tractors. In the meanwhile, Asuddin, Mehboob, Mauj, Sohan Lal and Kamru armed with Farsis, Tanchias, Dantis and lathis attacked them and whereas Mauj and Asuddin inflicted blows with a Danti and Tanchia on the head of Girdhari, Kallu and Rahmat ran over him with their tractors, and when Raghuveer Singh attempted to intervene in favour of Girdhari, Asuddin, Taiyab and Kamruddin also caused blows to him with their weapons. Girdhari died on the spot whereas Chhotey Lal, Lallu, Rajendra and Munshi sustained serious injuries. Raghuveer Singh thereafter went to the Police Station and submitted a written report at 5.30 p.m. the same afternoon and on its basis a First Information Report was drawn up. On the completion of the investigation, the accused were charged under various provisions of the Indian Penal Code, they being inter-alia Sections 302 and 302/149, 307 and 307/149. The prosecution in support of its case relied on the evidence of 17 witnesses in all, the primary witnesses being PW-1 Raghuveer Singh, the first informant, PW-2 Rajendra Kumar, PW-3 Chhotey Lal, PW-4 Munshi Ram, PW-5 Lallu Ram, PW-6, Suresh Kumar and PW-7 Than Singh. The prosecution also relied on the statement of PW-14 Dr. Sanjay Gupta, who had conducted the autopsy on the dead body and had found 5 injuries thereon and also examined five of the witnesses aforementioned i.e. Raghuveer Singh, Rajendra Kumar, Chhotey Lal, Munshi and Lallu and found several injuries on their persons, some of them grievous in nature whereas from the side of the accused Taiyab, Kallu, Rahmat, Asuddin and Kamru were found to have been injured, though with simple injuries. In their statements recorded under Section 313 of the Code of Criminal Procedure the accused denied their involvement simplicitor. They did not lead any evidence in defence. The trial court relying on the aforesaid eye witnesses account and the medical evidence convicted 7 of the 9 accused under Sections 302, 302/149, 307 and 307/149 etc. of the Indian Penal Code and sentenced them to various terms of imprisonment under those provisions. The trial court, however, acquitted Mehboob Khan and Taiyab. The 7 accused who had been convicted by the trial court challenged their conviction by filing DB Criminal Appeal No. 796 of 1998 whereas the complainant PW Raghuveer Singh assailed the acquittal of Mehboob Khan and Taiyab Khan by filing D.B. Criminal Revision No. 188 of 1999. During the pendency of the appeal in the High Court, Rahmat passed away and the proceedings against him were disposed of as having abated. The High Court on a reconsideration of the evidence came to the conclusion that the land on which the incident had happened did not belong to Prabhu but in fact belonged to the Forest Department and was adjacent to the fields of accused Mauj Khan and Rahmat and that the complainant party had, on the fateful day, gone for the first time to cultivate the said land, although Patwari had advised them not to do so. The court also found that the accused appeared to be in possession of the said land and finding that the complainant party had trespassed into it and had started ploughing had lodged a protest on which a free fight had ensued and persons from both sides had received injuries on which an FIR had also been registered against the complainant party by Kallu accused. The court accordingly concluded that in this view of the matter, the provisions of Sections 147, 148 and 149 could not be attracted and each of the accused was to be held liable and responsible for his individual act. The High Court accordingly examined the role of each of the accused and observed that though Kallu had been charged under Section 302 of the Indian Penal Code for having caused the fatal injury on the left side of the back of Girdhari with the cultivator by running over him he did not have the intention to cause death and as such he would be liable under Section 304 Part II of the Indian Penal Code. The court accordingly modified the conviction and sentence of the accused as under: (i) Appeal ofAppellant Rahmuddin is allowed and he is acquitted of the charges under Section 302/149, 447, 147, 325/149, 324/149 and 323/149 Indian Penal Code. He is on bail, he need not surrender and his bail bonds stand discharged. (ii) AsAppellant Rahmat Khan died during the pendency of the appeal, proceedings against him stand dropped. (iii) Appeal ofAppellants Kallu, Asuddin, Sohan Lal, Kamruddin and Mauj Khan stands partly allowed. Conviction ofAppellant Kallu under Section 302, 447, 148, 325/149, 324/149 and 323/159 is set aside, instead he is convicted under Section 304 Part II Indian Penal Code. As he had been in confinement for a period of more than six years, ends of justice would be met in sentencing him to the period already undergone by him in confinement, Kallu, who is in jail, shall be set at liberty forthwith if not required in any other case. (iv) Conviction ofAppellants Sohan Lal, Mauj Khan and Asuddin under Section 302/149, 447, 148, 325/149 and 323/149 stands set aside and they are acquitted of the said charges. Their conviction under Section 324 Indian Penal Code is however confirmed and they are sentenced to the period already undergone by them in confinement. Sohan Lal and Mauj Khan are on bail, they need not surrender and their bail bonds stand discharged.Appellant Asuddin, who is in jail, shall be set at liberty forthwith, if not required in any other case. (v) Conviction ofAppellant Kamruddin under Sections 302/149, 447, 148, 324/149 and 323/149 is set aside and he is acquitted of the said charges. His conviction under Section 325 Indian Penal Code however stands confirmed and he is sentenced to the period already undergone by him in confinement. He is on bail, he need not surrender and his bail bonds stand discharged. (vi) D.B. Criminal Revision No. 188/1999 being devoid of merit stands dismissed. (vii) The impugned judgment of the learned trial judge stands modified as indicated above.
(3.) The acquittal of Mehboob Khan and Taiyab Khan was, however, maintained on the plea that the ocular testimony was not corroborated by the medical evidence. It is in this situation the present set of appeals has been filed by the State as well as by PW-1 Raghuveer Singh.;