- (1.) This appeal by special leave is directed against the judgment of the High court of Rajasthan dated 25/04/1972. By virtue of the judgment under appeal, the convictions of the 18 appellants were upheld with certain modification which may be catalogued as follows:
(2.) The occurrence took place at about 6 p. m. on 15/12/1968 at village Kalyanapura when the complainant and his party went to the plot situated at Khasra No. 558 and 559 and after constructing water channel from the well which is situated in Khasra No. 559, they also enclosed the entire plot by thorny bushes so as to close any possible access to the well. At this stage the appellants variously armed arrived at the scene of the occurrence and in the course of altercation are alleged to have assaulted sugna, Ballu, Narain, Choona, Hanuman, Rekha and Roopa. Out of these persons, Roopa died as a result of the injuries received and Public Witness 16 narain and Public Witness 18 Chimnaram received grievous injuries in the nature of fracture of the hand and fracture of the finger respectively. FIR was lodged at I a. m. at police station Fatehpur. After usual investigation, a charge- sheet was submitted against the appellants who were tried and convicted by the Sessions Judge, Sikar as mentioned in the judgment. The High court in appeal acquitted some of the accused and modified the conviction of others and has maintained the conviction and sentences of the appellants as described above. The facts of the case have been detailed in the judgment of the courts below and it is not necessary for us to repeat the same all over again.
(3.) Appearing for the appellants, Mr. Jain has raised a short point before us and has attacked the findings arrived at by the High court in respect of the charges under S. 149 and 147 and 447 of the Indian Penal Code and has contended that these charges must necessarily fail because the appellants. were not inspired by any unlawful object but were seeking to assert their legal customary right which they undoubtedly possessed. It is also contended that the appellants had undergone substantial part of the sentence of imprisonment and hence their sentences may be reduced. We are of the opinion that the contention raised by learned Counsel for the appellants is well-founded and must prevail. The High court while considering the evidence led by the prosecution came to the following findings: (1) The accused had the right to take water from the well for them- selves and for their cattle. The village cattle also used to sit on the land in case there was no crop on it. The villagers also repaired the well in the year 1962. This well is the only well which provides drinking water to the villagers. (2) On the date of the incident during daytime, that is sometime before the actual incident took place, the complainant-party had prepared water channels for irrigating the crop and had put thorn-fencing on the land surrounding the well closing all pathways leading to the well. (3) On the date of the incident, they had prepared water. -. handles to irrigate the crop. The only right which the appellants had was to draw water from the well for drinking purposes. It is true that the complainant-party on the date of the incident closed access to the well by putting thorn-fencing on the land surround- ing the well and thereby obstructed the right of the appellants to draw water from the well.;