H. C. Mital, J. - (1.) MANGOO has been convicted under section 302 IPC while his son appellant no. 2 Ramesh alias Ramey has been convicted under section 302 read -with section 34 IPC and both of them have been sentenced to life imprisonment. The prosecution case in brief is that on 25-2-81 at about 12 in the noon in village Mahu police station Chandpur district Bijnor deceased Ghasita was clearing some Parti' land to put up his Bitaura (heap of cow dung cakes) thereon. MANGOO claimed that the land was part of his chak and objected, which led to a wrangle. Thereafter MANGOO left saying that he would teach him a lesson and returned armed with a Palkati along with his son Ramesh alias Ramey, who held the deceased by his waist and thereafter MANGOO inflicted blows with his Palkati as a result of which Ghasita died on the spot. The incident was witnessed by Mishru, son of the deceased, and other persons. Mishru submitted a written report of the occurrence at the police station Chandpur at a distance of four miles at 1.30 P.M., on the basis of which a case was registered. Sub-Inspector Satyapal Singh Pawar was entrusted with the investigation of the case. He arrived at the scene of occurrence, recovered the dead body and sent it for postmortem. The autopsy was conducted by Dr. R. C. Maharashi on 26-2-81 at 2.00 P.M. and submitted post mortem report Ext. Ka. 2. He found the following ante-mortem injuries :- 1. Incised wound 13 cm. x 6 cm. x bone deep on the left side of face extending from angle of mouth to the left side of the neck. Margins chest side obliquely partially smooth. Clotted blood present. Muscle figures cut. Maxilla bone of left side cut. Blood Vessels cut in the neck. Direction obliquely transverse, 2.Incised wound 6 cm. x 2 cm. x bone cut. Margins partially smooth. Direction transverse. Blood vessels cut on left side of neck, about 2 cm. below the injury no. 1. Cervical vertibra and blood vessels cut. Clotted blood present. 3.Incised wound- 2 cm. x 0.5 cm. x muscle deep back of left fore-arm in the middle, margins regular. Clotted blood present. Direction transverse. 4.Contusion 5 cm. x 3 cm. on back of left fore-arm, about 2 cm. below the injury no. 3. Both bones (radius and ulna) of left fore-arm fractured. 5.Incised wound 5 cm. x 1 cm. x bone deep on the dorsal aspect of Rt. hand cutting the bones of right index and middle finger at the base of the fingers. Direction transverse-margins regular. On internal examination stomach contained 7 oz of undigested rice and food. Large intestines contained faecal matter.
(2.) AFTER completion of the investigation both the appellants were tried and to prove its case the prosecution in all examined 7 witnesses of whom PW 1 Mishru, son of the deceased, PW 2 Ballu and PW 3 Phulwa are eye witnesses of the occurrence and they corroborated the prosecution case stated above. PW 4 Dr. R. C. Maharshi proved the postmortem examination report and the ante-mortem injuries etc. as noted above, he has also (sic) that the death was caused as a result of ante-mortem injuries nos. 1 and 2 on account of shock and haemorrhage and the same could be caused at about 12 noon on 25-2-81. PW 5 Constable Harbans Singh had recorded the first information report and registered the case in General Diary. PW 6 Ghasi Ram Rana is the Lekhpal of the village and deposed that the plot in dispute bearing no. 29 was Parti and it was used by the Harijans of the village for keeping their Bitauras. PW 7 Sub Inspector Satyapal Singh Pawar is the Investigating Officer who deposed about the various steps taken by him during the course of investigation. The learned Sessions Judge examined one Court witness namely, Sri Sardar Bahadur, Judicial Magistrate, who brought the special report of the case received by the Chief Judicial Magistrate on 25-2-81. The version of the appellants is that the land in dispute was part of their chak and it was never in possession of the deceased. Both the appellants, however, denied their participation in the crime. The learned Sessions Judge, however, believed the prosecution evidence, hence convicted and sentenced the appellants as above. On being aggrieved, this appeal has been preferred and on their behalf it has been urged that from the evidence on record it was clear that the land in dispute belonged to the appellants. It was part of their chak. That it had not vested in the Gram Samaj and, therefore, the deceased and others had no right to put up even the Bitauras thereon. That if the deceased was forcibly trying to take possession by putting his Bitaura and if the appellants resisted the same, they did so in defending their property hence committed no offence particularly when it was also apparent from the evidence that the deceased was also armed with a spade which he would have used. It was also urged that implication of Ramesh alias Ramey was prima-facie wrong as he was un-armed and did not cause any injury and the prosecution version that he had held the deceased by waist and thereafter Man goo had inflicted blows with the Palkati over the neck of the deceased could not be believed. To appreciate the contention of the learned counsel for the appellants the prosecution evidence has got to be carefully scrutinised.
(3.) AS regards the land whether it was of Gram Samaj or part of the chak of the appellants there is evidence of PW 6 Ghasi Ram Rana, Lekhpal of the village. He has no doubt stated in his examination-in-chief that on the land in dispute the villagers including Harijans had put up Bitauras; that Mangoo appellant had no right and the same belonged to the Gram Samaj. He also stated that Khasra number of the plot was 29. In his cross-examination he, however, admitted that all the land which vested in the Gram Samaj has been recorded in the khasra and khatauni. He had come with the relevant revenue records and that in Khasra and Khatauni over plot no. 29 there was no entry that it was Path-wara or that the same had been vested in Gram Samaj and he further admitted that the land of plot nos. 26 and 32 was left for Gram Samaj and plot no. 32 was allotted to the Harijans. He subsequently admitted that plot no. 29 or any part of that plot was not allotted to the Harijans but it was Banjar. He did not bring Zila Chakbandi. He further admitted that he had not demarcated the chak of Mangoo, adjoining the land in dispute, and the land in dispute nor he could give the length and width of plot no. 29. In that view of his statement that the land in dispute had not vested in the Gram Samaj nor was there any entry to the effect that it was being used for putting Bitauras by the Harijans, there is force in the version of the appellant Mangoo as given in the court below that the land belonged to him. The same is further corroborated by the admission of PW 2 Ballu, in his cross-examination in para 9 that for the last 20 years there has never been any dispute over the land in dispute where the murder had taken place. That Mangoo used to say that "Patwari ko Bulalo Aadha Kharcha me doonga or aadha aap log deveu aur Patwari jitni jameen nikale voh turn apne kam me lelo." Thus from this admission of PW 2 Ballu it is clear that conduct of appellant Mangoo had always been very up-right and he never objected in getting his plot demarcated and was ready to leave the extra land if any with him. Regarding the occurrence as to how it had taken place there is testimony of three eye witnesses, namely, PW 1 Mishru, son of the deceased, PW 2 Ballu and PW 3 Phulwa. Admittedly all the three are Harijans. Mishru PW 1 has stated that he himself, Ballu and Phulwa and other Harijans were at the Dharamshala of Harijans which is about 50 steps away from the scene of occurrence and from there he and witnesses heard the wrangle between his father, deceased Ghasita, and Mangoo when deceased was clearing the land and Mangoo was objecting to it. He has also stated that his father was saying that other persons were keeping their Bitauras on the land in dispute and he would also keep his own Bitaura but Mangoo objected and he then left giving threat and returned after sometime with a Palkati along with his son Ramesh. That they were at a distance of 20-25 paces and then saw that Ramesh held the deceased by waist and thereafter Mangoo inflicted blows with Palkati on the neck of the deceased and the deceased had also received injuries on his hand when he tried to ward off the blows. In his cross-examination he admitted that he did not mention in the FIR that Harijans were keeping their Bitauras on the land in dispute. He also admitted that since alter the Chakbandi Mangoo had been objecting that he would not allow anybody to take possession thereon. He has also admitted that Ballu PW 2 was nephew of his father. He has also admitted that though they had kept Bitaura on the land in dispute but subsequently it was removed and thereafter his father was going to keep it when Mangoo said that it was part of his field and he would not permit him. He, however, denied that Mangoo had snatched the spade of his father which was with him. He, however, admitted that his father was using the spade on the ground.;