- (1.) This is an appeal by special leave against the judgment of the High Court of Rajasthan, whereby a number of accused who were acquitted by the Sessions Judge at the trial were convicted and sentenced on appeal by the High Court. In addition, the High Court while confirming the conviction of another accused (Surjan) under S. 323, Penal Code convicted him also under S. 304, Penal Code and sentenced him therefore to ten years rigorous imprisonment.
(2.) The case arose out of an incident in the village of Dadoosan at or about 10. A. M. on 15-3-1949, between two rival groups. The village was a Jagir village belonging to a Jagirdar by name Thakore Bakhat Singh. The cultivating class in the village were mostly Bisnois and appear to have been split into two groups in connection with certain demands of the Jagirdar against the tenants, viz., the payment of hasal of Guar. Twenty families of Bisnois in the village were in favour of the payment to the Jagirdar and seven families against it. The accused are partly members of these seven families and partly residents of adjoining belong villages. The prosecution witnesses belong mostly to the group of the twenty families favourable to the Jagirdar.
(3.) 15-3-1949 was the day next to the Holi called the Dhulehandi day. On this day it was usual for the Bisnois to observe a ceremony called Pal at which all the Bisnois collect and take charanamrut from a Sad (who performs in Puja). In view of the existence of groups in the Bisnois of the village, the two groups had their Pal ceremony on that day separately. The trouble arose with reference to the participation in this Pal ceremony of a person called Dhonkala examined at P. W. 4. He participated in the Pal ceremony celebrated by the twenty group. He appears to be somewhat closely related to some members of the seven group, who probably wanted to get him back to their group. It is the evidence of one of the prosecution witnesses, P. W. 18, that "Peka (one of the accused belonging to the seven group) the brother of Dhonkala (P. W. 4) directed Dhonkala to join him and leave the twenty". P. W. 4 himself says that he took Pal with the men of the twenty group and that when after taking Pal he started from home. Lachha (one of the accused belonging to the seven group) told to take pal with him and his partly and that he did not to go them. Whether it was Peka or Lachha, it is clear that one of the members of the seven group wanted P. W. 4 to participate with them and that on his refusal some wordy abuse followed. According to the prosecution case this resulted in some of the accused pursuing P. W. 4 with a view to beat him. P. W. 4 ran into his dhani (hut). Two of the accused Ramchand and Peka thereupon set fire to the dhani with a match stick. The flames which resulted from the fire attracted the attention of the others in the village and the prosecution eye-witnesses came running up to the scene. Some out of them attempted to extinguish the fire but the accused prevented them from doing so. One Abhey Singh, a distant relation of the Jagirdar, was one of the prominent persons whose intervened. His interference was resented and three out of the these accused were said to have hit him on the head with lathis which they had in their hands. It may be mentioned that it is part of the prosecution case that all the accused except one Ramchand came to the Pal with lathis in their hands and that accused Ramchand had an axe in his hands. The assault on Abhey Singh by three of the accused resulted in a marpeet in which a number of person on the prosecution side, a viz., Rama, P. W. 13, Sawai, P. W. 14, Ridmal, P. W. 15, Chaina, P. W. 16 and Pusja, P. W. 18, also received injuries. The accused thereupon dispersed and went away to their places. Devi Singh, P. W. 8, the son of the Jagirdar, who is alleged to have run up to the scene of occurrence on noticing the smoke rising form the dhani of Dhonkala and who figured as an eye-witness of the incident in the case, took the injured persons to the Sanchore dispensary. Abhey Singh's injuries proved fatal and he died on the way to the hospital. A postmortem examination was held by the Doctor, P. W. 10. He also examined the injuries received by the others. P. W. 14, Sawai, received a large number of injuries numbering as many as thirteen. P. W. 13, Rama, received one injury, P. W. 15, Ridmal received three injuries, P. W. 16, Chaina, received three injuries. P. W. 18, Pusia, received two injuries. All the injuries of these five persons were simple consisting of contusions, abrasions, swellings and so forth, excepting one injury on Sawai, P. W. 14, which was a "simple fracture at the junction of the upper one-forth with the lower three-fourth of the left radius". All the injuries, according to the Doctor, were received by blunt weapons excepting one incised wound on Pusia, P. W. 18, which according to the Doctor, was inflicted with a sharp weapon. In the prosecution evidence this injury was ascribed to the accused Ramchand, who is said to have had an axe in his hand. The first information of the incident was lodged with the Circle Inspector of Police, Sanchore, on 15-3-1949, by Devi Singh, P. W. 8. Challan was presented against seventeen persons who, after preliminary enquiry, were committed to the Court of Session by the First Class Magistrate, Bhinmal, by his order dated 24-12-1949. The accused were charged thereby as follows : All the accused were charged under S. 148, Penal Code, the common object of the assembly being said to be to set the dhani of Dhonkala on fire. Accused Surjan was separately charged under S. 302, Penal Code for causing the death Abhey Singh. Accused Ramchand and Peka were charged under S. 436, Penal Code for setting fire for the dhani of Dhonkala, P. W. 4. Accused Ramchand was also separately charged under S. 324, Penal Code in view of his alleged assault with an axe in his hand. In addition to these, all the accused were charged under S. 302, Penal Code taken with 149, Penal Code. S. 325, Penal Code taken with 149, Penal Code. At the Sessions trial, in addition to the above charges individual charges were added against eight of the accused under S. 323, Penal Code. After trial, the learned Sessions Judge came to the conclusion that no unlawful assembly with a common object as alleged was made out. He was not satisfied that Ramchand and Peka set fire to the dhani of Dhonkala or that Surjan dealt the fatal blow on Abhey Singh. Accordingly he acquitted Ramchand, Peka and Surjan in respect of the respective individual charges framed against them. In view of the finding that unlawful assembly was not made out, he acquitted all the accused of the various charges against them under Ss. 302/149, 325/149 and 436/149, Penal Code. The view taken by him was that the several accused could be found guilty only in respect of the individual part played by each. Dealing with the evidence on this footing, he did not feel satisfied about the evidence against any of the accused excepting four. They were Surjan, Bhagchand son of Hamira and Dhonkala (a person different from Dhonkala P. W. 4), who were said to have been assailants of the deceased Abhey Singh, and Kana son of Hanuta who is said to have assaulted Sawai, P. W. 14. He accordingly convicted Surjan, Bhagchand and Dhonkala under S, 323, penal Code and Kana under S. 325, Penal Code and sentenced each of them to undergo one year's rigorous imprisonment. The remaining were acquitted. Thus thirteen person were acquitted in toto while the four above mentioned were acquitted of all the major charges and were convicted only in respect of minor charges (Ss. 323 and 325, Penal Code).;