MATHUR, J. - (1.) BOTH the appeals have been directed against the judgment dated 19. 12. 1981, passed by the learned Sessions Judge, Jodhpur, in Sessions Case No. 147/1980. In D. B. Criminal Appeal No. 659/1981, appellants Himmat Dan, Shiv Dan and Man Dan and in Appeal No. 1/1982, Pratap Dan, Har Dan and Bakhtavar Dan have been convicted of the offence u/s 302/149 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 100/- each and in default of payment, to further undergo one month's rigorous imprisonment. All the accused persons have also been convicted of offence u/ss 148, 447 and 307/149 IPC and they have been sentenced to one year's rigorous imprisonment, six months' simple imprisonment and four years' rigorous imprisonment respectively. Appellant Pratap Das has also been convicted of offence u/s 324 IPC and appellants Bakhtavar Dan, Har Dan, Himmat Dan, Shiv Dan and Man Dan of offence u/s 324/149 IPC and each of them has been sentenced to six months' rigorous imprisonment. All the appellants have also been convicted of the offence u/s 323 IPC and sentenced to six month's simple imprisonment. All the sentences have been ordered to run concurrently.
(2.) THE prosecution case as disclosed during the trial is that P. W. 1 Ghewar Ram Megwal is a resident of village Birai, Tehsil Shergarh, District Jodhpur. On the outskirt of village Birai, there is a well known as Alakhsagar in the agricultural land bearing Khasra No. 409, belonging to him. THEre is also a land of his ownership and possession in Khasra Nos. 410, 689 and 408. THE agricultural land in Khasra No. 408 was given in share to his brother Manak Ram. Rest of the land i. e. 17 bighas and 5 biswas of land in Khasra No. 410, 16 and half bighas of land in Khasra No. 689 and 12 bighas of land in Khasra No. 409 are in cultivatory possession of P. W. 1 Ghewar Ram for last more than 40 years. In between Nos. 410 and 689, there is a public way going from village Birai to Utambar. In two bighas of land in Khasra No. 410, Ghewar Ram had sown the crop of chillies in the year 1980 and in Khasra No. 689, the crop of `bajari' was sown. On 16. 8. 1980, P. W. 1 Ghewar Ram alongwith his son P. W. 2 Balu Ram and his wife P. W. 3 Smt. Jatna were working in the field of chillies. Ghewar Ram's another son Bhera Ram (deceased) and his wife P. W. 5 Mst. Noji and daughter-in-law P. W. 6 Mst. Chandani were in `jhupa' (Hut) constructed on the agricultural land bearing Khasra No. 410. Ghewar Ram's daughter P. W. 4 Miss Mangi was grazing cattle in the nearby area. It is alleged that at 9-10 A. M. , all the eight accused persons viz; (1) Pratap Dan (2) Sohan Dan, (3) Bakhtavar Dan, (4) Khet Dan, (5) Hardan, (6) Himmat Dan, (7) Shiv Dan and (8) Man Dan alongwith some labourers arrived on the land bearing Khasra No. 689. THEy started plucking the `sittiya' of Bajra crop. As the accused persons were in large number, Ghewar Ram could not dare to object plucking of Bajari `sittiya'. THEy continued to pluck the Bajari `sittiya' for an hour. THEreafter, they entered in the field of chillies where Ghewar Ram was working with other members of the family. Accused Pratap Dan and Sohan Dan were armed with `kulharis'. Rest of the accused were armed with lathis. Pratap Dan and Sohan Dan inflicted injuries on the head of Ghewar Ram by `kulhari'. On account of the injuries, he fell down. THEreafter, all the accused persons assaulted him. Bhera Ram, the elder son of Ghewar Ram came out of the `jhupa' to rescue his father. He was also assaulted by the accused persons. Bhera Ram also fell down on the ground. THE wife of Ghewar Ram P. W. 3 Mst. Jatni came to rescue her husband but she was also assaulted. THE same treatment was given to the son of Ghewar Ram i. e. P. W. 2 Balu Ram and P. W. 4 Mst. Mangi, daughter of Ghewar Ram, Bhera Ram's wife P. W. 6 Mst. Chandani with her one year baby escaped from the Dhani. It is further alleged that the accused persons lifted all the injured persons namely Bhera Ram, Balu Ram, Ghewar Ram and Smt. Jatna from the Bajari field and put them beneath the Khejri tree on the way between Khasra Nos. 410 and 689. THEy were further assaulted by kulharis and lathis. Bhera Ram succumbed to the injuries on the spot. Ghewar Ram, Balu am and Smt. Jatna remained lying injured beneath the Khejri tree. THE information of the incident was lodged by P. W. 7 Jagmal Dan, a school teacher, vide Ex. P. 6 at Police Station, Balesar, on 17. 8. 80 at 1 A. M. On the basis of this information, police registered a case for the offence u/s 302 IPC and proceeded with investigation. After usual investigation, police submitted a chargesheet against eight accused persons for the offences u/ss 302, 307, 324, 325, 149, 447, 148 IPC. The accused persons pleaded not guilty to the charges levelled against them and claimed trial. The prosecution in support of the case examined 14 witnesses and produced number of documents. In their statements under Section 313 Cr. P. C. all the accused persons denied the correctness of the prosecution evidence appearing against them. The appellant Pratap Dan stated that the witnesses have given false statements as they belonged to one family. He also stated that the land bearing Khasra Nos. 689 and 410 was of their cultivatory possession since time immemorial for more than 50 years. A wrong entry was made in the revenue record on account of the mistake of the officials of the Settlement Department, whereby the land was entered in the name of Kana Ram (Father of P. W. 1 Ghewar Ram) instead of their names. In the year 1960, Kana Ram filed a suit in the court of Assistant Collector, Jodhpur for the purpose of taking illegal benefit. He also stated that on the death of Kana Ram, Ghewar Ram was substituted as Legal Representative. In the said suit, Kana Ram and Ghewar Ram both conceded his possession on the subject land. He contested the suit upto the Revenue Board. The appeal was filed on account of the death of Kana Ram, which was dismissed on account of the fault of the advocate. However, the decree was not executed and the possession was not taken from him. Thus, he has been in continuous possession over the subject land. He further stated that in the preceding year in the month of `ashadh' on rains, he had sown the crop of Bajari in the said land. Thereafter, for guarding the crop, he had constructed a small `jhupa' of 4 x 4 on the land. He had placed one water earthen pot and one iron tumbler. The crop of Bajari was cultivated by them. On 16. 9. 80, he alongwith 20 persons went to the field at about 9 A. M. for harvesting the crop of Bajari. At about 12 noon, Ghewar Ram arrived armed with a Kulhari. He was accompanied by Bhera Ram, armed with a Kulhari and Balu Ram armed with a lathi. Mst. Jatni was also carrying a lathi in her hand. Ghewar Ram asked them to leave the field, otherwise they will be killed. They did not leave the field and, as such, Ghewar Ram, struck a Kulhari blow on his head. However, he was saved because of turban on the head. Bhera Ram attacked on Man Dan by Kulhari but he was saved. Thereafter, Bhera Ram attacked on Sohan Dan by Kulhari causing severe injuries on the left hand. There was profuse bleeding. Balu Ram and Jatna also assaulted them. Hearing his cries, Man Dan, Himmat Dan, Har Dan, Shiv Dan, Bagtavar Dan and Khet Dan rushed to the spot to rescue them. He also stated that if the said persons had not come, he alongwith Sohan Dan would have been killed and they would have forcibly taken possession over the subject land. He also stated that four or five days back, they had sown chillies in Khasra No. 410. He also produced the judgment in settlement in their favour. He also produced the copy of the objection filed before the Settlement Department. All the other accused persons adopted the statement of Pratap Dan except Man Dan. He stated that they were in continuous possession of Khasra Nos. 410 and 689. The crop of Bajari was sown by them. The crop was cultivated and guarded by them. He also stated that when they went for harvesting the Bajari crop, Ghewar Ram and Bhera Ram armed with Kulharis and Balu Ram and Mst. Jatni armed with lathis abruptly attacked on them. Ghewar Ram asked them to leave the field immediately, otherwise they will be killed. They did not leave the field. Bhera Ram attacked on him by a Kulhari but he could save himself. He also attacked on Sohan Dan and chopped off his hand. Ghewar Ram attacked on Pratap Dan causing injuries on his hand. Balu Ram assaulted them by lathis. He also stated that they are in continuous possession over the land in dispute. They also stated that Bajari crop was sown by them. Accused Sohan Dan stated that Bhera Ram inflicted three injuries on his left hand on account of which his hand became disabled. Rest of the statement of Pratap Dan was adopted by him. The defence examined 6 witnesses in support of their version. On consideration of evidence on record, the trial court accepted the prosecution version as regards the possession as well as the manner in which the incident took place. The plea of self defence was rejected by the trial Court. The trial court convicted and sentenced all the accused persons as mentioned above except Sohan Dan and Khet Dan. Both the accused persons have been acquitted by the judgment under appeal. Assailing the judgment, it is contended by Mr. Doongar Singh, learned counsel for the appellants that the trial court has committed error in holding that the complainant party was in possession over the land in dispute i. e. Khasra No. 410 and 689. It is submitted that even from the prosecution evidence, it is established that the accused persons were in possession over the land in dispute and the mis-chief was committed by the complainant party to dispossess them. It is also submitted that even if the accused persons were trespassers on the land, they could be dispossessed only in accordance with law and they had a right to cause injuries to the complainant party in exercise of their right of private defence. It is also submitted that there is nothing to show that as to who had caused the fatal injury to the deceased Bhera Ram. Injuries on the persons of the accused appellants have not been explained by the prosecution. Mr. M. L. Garg, learned counsel appearing for the accused Pratap and others has also raised identical contentions. On the other hand, learned Public Prosecutor assisted by Mr. Mahesh Bora, learned counsel for the complainant, has supported the judgment of the trial court. Mr. Mahesh Bora, learned counsel appearing for the complainant has submitted that there is an overwhelming evidence to show that the complainant party was in possession over the land in dispute. It is submitted that the large number of injuries on the body of deceased Bhera Ram and other witnesses speaks in volume, the cruel manner in which they were assaulted. It is submitted that it is beyond comprehension that Ghewar Ram with his two sons and wife could think of dispossessing twenty well built male persons armed with deadly weapons. It is submitted that the plea of right of private defence is nothing but an after thought. It is also submitted that it is a glaring case of highhandedness of the accused persons and atrocities on the persons of depressed class of the Society. We have considered the rival contentions. We have also scanned the evidence on record. P. W. 14 Dr. N. S. Kothari has stated that on 18. 9. 1980, he conducted the post mortem of the dead body of deceased Bhera Ram and found the following injuries: " 1. Ill define swelling on the left temple region of face and left ear pinna with haematoma; 2. Bruise - 6. 0 cm x 2. 0 cm on the upper 1/3 left arm oblique with Abrasion - 3. 0 cm x 2. 0 cm on the lateral aspect; 3. Bruise - 8. 5cm x 1. 5cm on the middle 1/3 left arm oblique laterally with Abrasion - 3. 5 cm x 1. 0 cm; 4. Abrasion - 4. 00 cm x 1. 0 cm lower 1/3rd left arm laterally; 5. Bruise 6. 0 cm x 2. 0 cm on the middle 1/3 rd left arm dorso laterally; 6. Bruise 8. 0 cm x 5. 0 cm on the middle 1/3 right arm antero laterally with fracture of shaft right humerous; 7. Ill define swelling right hand with fracture of 2nd meta carpal bone with haematoma; 8. Bruise - 10. 0cm x 4. 0 cm on the left scapular region oblique; 9. Bruise - 7. 0 cm x 1. 0 cm on the right scapular region; 10. Bruise- 14. 0 cm x 3. 0 cm on the left lower chest and left hypochondrium upto post axillary line with fracture of 10th rib left side in mid axillary line. On opening the abdomen-there is laceration (rupture) of spleen 5. 0cm x 1. 0cm x 1. 0cm on the antero lateral aspect and peritonear cavity is full of partially clotted blood about 1200 to 1500 ml. 11. Bruise 8. 5cm x 2. 5cm on the back of lower chest in middle in transverse direction; 12. Bruise 13. 0cm x 3. 0cm on the lumber region oblique; 13. Bruise 20. 0cm x 16. 0cm on the right gluteal region with haematoma; 14. Bruise 18. 0cm x 16. 0cm on the left gluteal region with haematoma; 15. Bruise 13. 0 cm x 1. 0 cm lower 1/3rd left thigh anteriorly in oblique direction; 16. Bruise 10. 5cm x 1. 5 cm on the middle 1/3rd left thigh laterally; 17. Abrasion 5. 0 cm x 0. 5 cm on the upper 1/3rd left leg anteriorly; 18. Ill define swelling calf region left leg; 19. Ill define swelling left ankle region with fracture of left medial malleolus; 20. Ill define swelling right ankle laterally with abrasion 2. 5cm x 1. 0 cm. " He has proved the post mortem report Ex. P. 56. In his opinion, the cause of death was shock and haemorrhage due to rupture of spleen and multiple injuries. He also admitted that the injuries could have been cuased by lathi or the opposite side of the Kulhari. Thus, it stands proved that Bhera Ram died of homicidal death.
(3.) P. W. 13 Dr. Narendra Gehlot has stated that on 17. 9. 80, he examined P. W. 1 Ghewar Ram and found the following injuries on his person: " 1. Lacerated wound 3cm x. 5cm x. 5cm deep oblique on Rt. side of scalp, about 7cm above to Rt. eye brow; 2. Incised wound 7cm x 1cm x 1cm deep on Rt. parietal region about 8cm above to Rt. ear, oblique in nature from parietal Rt. side to central part of scalp; 3. Incised wound 4. 5cm x 1cm x 1cm deep horizontal in nature from Lt. side to central side of occpit, on the occipital region; 4. Incised wound 2. 5cm x. 5cm x. 5cm deep on occipital region, Horizontal in nature about 2cm. posterior to injury No. 3; 5. Lacerated wound 1. 5 cm x 1cm x. 3cm on Lat. side of Rt. eye; 6. Lacerated wound 1cm x. 5cm x. 5cm deep on Extensor Surface of Rt. arm in Lower 1/3 part; 7. Abrasions 1 x 1cm on Rt. Index finger. 5 x 1cm on Rt. middle finger (Rt. Hand) 8. Swelling 8cm x 6cm on dorsal side of Rt. palm; 9. Swelling 6cm x 5cm on Extensor side of Left arm in mid part; 10. Swelling 8. 5 cm x 8cm on Left arm just below to left elbow; 11. Contusion 9cm x 2cm oblique on Lt. side of Back; 12. Contusion 7cm x 1cm Horizontal on It. side of back in lower part; 13. Contusion 10cm x 7cm on left scapular region; 14. Multiple contusions 20cm x 18cm on Right gluteal region; 15. Multiple contusions 20. 5cm x 16cm on left gluteal region. " He has proved the injury report Ex. P. 52. He also stated that injuries No. 2, 3 and 4 were caused by sharp edged weapon and rest of the injuries were caused by blunt object. He referred injuries No. 8, 9, 10 and 11 for radiological examination. He found rest of the injuries simple in nature. After seeing the x-ray plate, Ex. P. 16, he opined that injuries No. 8, 9, 10 and 11 were grievous in nature. He also stated that on the same day, he examined P. W. 2 Balu Ram, aged 16 years. He noticed the following injuries on his person: " 1. Incised wound 5cm x 1cm x. 5cm deep on central part of scalp about 5. 5cm above to glabella running antero posteriorly; 2. Contusion 10cm x 8cm on Lt. upper arm on the deltoid region; 3. Contusion 12cm x 10cm on left shoulder region (scapular); 4. Contusion 10cm x 8cm on Rt. scapular region; 5. Contusion 6cm x 2cm oblique, on left side of Back; 6. Contusion 5cm x 5cm on Extensor side of left arm in mid part; 7. Contusion 5cm x 3cm on Rt. arm on Extensor side in lower 1/3 part; 8. Contusion 9cm x 2cm on left gluteal region; 9. Contusion 11cm x 2. 5cm oblique, on lateral side of left thigh, on upper part; 10. Contusion 7cm x 1cm oblique, on Lat. side of left thigh in mid part; 11. Lacerated wound 2cm x. 5cm x. 2cm vertical in mid part of left leg on Ant. side; 12. Contusion 5 x 4cm on left leg in mid part 3cm above to injury No. 11; 13. Lacerated wound 1cm x. 5cm x. 2cm deep vertical on Rt. leg in mid part; 14. Lacerated wound 1 x. 5cm x. 3cm deep on Rt. leg in mid part vertical; 15. Contusion 5 x 4cm on Rt. gluteal region; 16. Pt. complained of pain in Rt. knee joint, but no injury is seen. " He has proved injury report Ex. P. 53. He found injury No. 1 simple in nature caused by sharp edged weapon. He further stated that on the same day, he examined P. W. 5 Mst. Jatna and found the following injuries: " 1. Lacerated wound 6cm x 1cm x. 2cm deep oblique, on left parietal region about 8cm above to left ear; 2. Contusion 9cm x 4cm oblique on Lat. side of Left upper arm; 3. Contusion 4cm x 2cm oblique on Lat. side of left upper arm; 4. Contusion 9 x 2cm oblique on Rt. gluteal region; 5. Multiple contusions 20cm x 14cm on left gluteal region; 6. Contusion 9cm x 5cm on Lateral side of left thigh in upper 1/3 part; 7. Contusion 3cm x 3cm on Rt. thigh, on upper part & on lateral side; 8. Abrasion 3cm long on Rt. Arm. " He has proved the injury report Ex. P. 54. All the injuries were simple in nature caused by blunt object. On the same day, he also examined P. W. 4 Kumari Mangi and found the following injuries; " Contusion 4cm x 3cm on Lat. side of Right upper arm. " He has proved the injury report Ex. P. 55. ;