GUPTA, J. - (1.) THESE two appeals arise out of common judgment of the learned Sessions Judge, Bikaner dt. 1/12/1984. In the incident seven accused persons were involved, out of which one Nanak Ram was absconding, therefore, after his arrest he was separately tried, while six accused persons have been tried vide Sessions Case No.63/83. Obviously, since Nanak was separately tried, and his case was decided by the separate judgment, appeal filed by that accused against that judgment, being Appeal No. 314/90, shall be separately decided on the basis of the material on record of that sessions case.
(2.) THE necessary facts are, that some unknown persons gave a telephone information in the Police Station, Nokha on 29/5/1983, which was entered vide Roznamcha, being Ex.P- 43, and Aste Ali P.W. 13 went to the spot, who found victim Shera Ram in seriously injured condition. He recorded the statement of Shera Ram Ex.P- 9. Injured was sent for medical assistance to Nokha Hospital, and Ex.P-9 was sent to the police station along with constable for registration of regular F.I.R., however, he stayed back on the spot. THE F.I.R. is registered as Ex.P-55. On the spot Shivji Ram was found dead, his inquest report Ex.P- 32, site plan and site inspection note being Ex.P-2 and Ex.P-56 were prepared, blood stained earth and control earth were taken into possession vide Ex.P-33, Jeis of the accused Chuna Ram, and Nanak were found lying broken on the spot, and wooden Jei of Shivji Ram was found blood stained, which all were taken into possession vide Ex.P-34, the foot wears of Shivji Ram and Shera Ram were also found on the spot which were taken into possession vide Ex.P-35, dead body was sent for post mortem examination, which was conducted by Dr. Motilal Mishra P.W.9, Post Mortem Report is Ex.P-43, the blood stained apparel of the deceased were seized vide Ex.P-10, one Odni of Mst. Dhuri was taken into possession from the person of the deceased vide Ex.P-36, the sealed packets were deposited in the police station. After completing further necessary investigation challan was filed in the Court of Munsiff and Judicial Magistrate, Nokha against six accused persons, being Bhera Ram, Sadula Ram, Chuna Ram, Surja Ram, Mohan Ram, and Gordhan Ram. We may notice here, that accused Bhera Ram and Chuna Ram are real brothers being sons of Megha Ram while Surja Ram and Mohan Ram are the real brothers being the sons of accused Sadula Ram. THE learned Magistrate committed the accused to the learned trial court. The learned trial court framed charges for the offence under Section 302, 307, 323, 324 all read with Section 149 IPC, so also for the offences under Section 147 and 148 IPC. Obviously accused persons denied the charges. During trial the prosecution examined 13 witnesses, and tendered in evidence 59 documents, while the defence did not lead any evidence. After completing the trial, the learned trial court convicted the accused persons Bhera Ram and Surja Ram for the offence under Section 302/149 IPC, and sentenced them to imprisonment for life. The other accused persons being Sadula Ram, Mohan and Gordhan were convicted for the offence under Section 304 Part-II read with Section 149 and sentenced to 5 years imprisonment, the four accused persons being Surja. Ram, Bhera Ram, Mohan Ram and Gordhan Ram were also convicted for the offence under Section 148, and sentenced to six months rigorous imprisonment, Sadula Ram was convicted for the offence under Section 147 and sentenced to 3 months rigorous imprisonment, then each of the accused persons Surja Ram, Bhera Ram, Mohan, Sadula Ram and Gordhan were further convicted for the offence under Section 323 and 324/149 IPC, and were sentenced to six months rigorous imprisonment. All sentences were made to run concurrently. However, the accused Chuna Ram was acquitted. Against this judgment Appeal No. 428/84 has been filed by the five accused persons seeking to challenge their conviction and sentences as recorded by the learned trial court, while Appeal No. 106 has been filed by the State, seeking to challenge acquittal of Chuna Ram, so also challenging acquittal of Sadul Ram, Mohan, Gordhan for the offence under Section 302/ 149 IPC, as they had been convicted only under Section 304 Part-II read with Section 149 IPC. It may be noticed here, that during pendency of these appeals four accused persons Sadula Ram, Gordhan Ram, Bhera Ram and Chuna Ram have expired, with the result that the Appeal No. 106 abates against the respondent Chuna Ram, Sadula Ram and Gordhan Ram, and survives only against Mohan Ram. Likewise Appeal No.428 also abates so far as it relates to Bhera Ram, Sadula Ram and Gordhan Ram and survives on behalf of Surja Ram, and Mohan Ram. Thus, the two appeals are required to be adjudicated only with respect to the two accused persons Surja Ram and Mohan Ram. The case of the prosecution as disclosed in the statement of Shera Ram Ex.P-9 is, that his elder brother Shivji Ram had obtained Patta of land in the western side of the road in village Somalsar. Thereupon accused Bhera Ram and Sadula Ram told that they will not allow him to take Patta. Some 2-2 1/2 months ago they erected fencing around the Pattasud land, whereupon Bhera Ram etc. were seriously annoyed. With this background it was deposed that at 10.30 in the morning on that day when the deponent, his brother Shivji Ram, and Balu Ram all the three brothers were repairing/re-erecting the fencing, the accused Bhera Ram duly armed with Barchhi, Sadula Ram armed with Lathi, sons of Sadula Ram being Mohan Ram and Surja Ram also armed with Barchhi, Gordhan armed with Barchhi and Sadula Ram's third sons Nanak Ram and Chuna Ram armed with Jei, resident of Somalsar with due preparation entered into Bara from towards south side, and started dismantling fencing, whereupon the deponent and his brothers came to the Bara, and asked them that they have obtained Patta from the Panchayat, then why they are dismantling fencing, whereupon Bhera Ram and Surja Ram exhorted to kill, whereupon all the accused persons with intention to kill started giving beating to the deponent, and Shivji Ram. Balu Ram and Mangilal who were there on the spot got frightened, and stood on the side of the road, and requested not to give beating; as a result of injury Shivji Ram fell down, and treating the two to be dead all seven persons went away from there. Shivji Ram died on the spot, and he could not get any conveyance to go to Nokha. It was noticed by Aste Ali that the deponent was having injuries on the left side of the head, and was having bleeding injury on the backside, left thumb, right wrist, right palm were also injured, and which were bleeding, and there was swelling. There were couple of marks of injury on the back, there were two injuries on the right thigh, and on the right leg, left tibia was bleeding. On this report a case for the offence under Section 302,307, 324, 323, 147, 148, and 149 IPC was registered, and investigation was commenced.
(3.) THE prosecution has examined Shera Ram P.W.7, the injured, Mangilal and Balu Ram P.W. 2 and 11 respectively and also examined P.W. 6 Dhuri, also an eye witness, who had come on the spot, and by falling upon victim Shera Ram had saved him, and had tied her Odni on the head of Shivji Ram to prevent further bleeding, which Odni was recovered from the dead body, vide Ex.P-36, as mentioned above. THE broken Jeis were seized from the spot as noticed above vide Ex.P-34. However, the two Barchhis Article Ex.P-12 and P-13 were recovered from the accused persons Surja Ram and Mohan Ram, which were sent for forensic examination, and were found, to be stained with human blood. Before proceeding further we may notice, that as appears from the post mortem report Ex.P-43, the deceased Shivji Ram was having as many as nine injuries, out of which the first one was fatal one, being the incised wound 6 1/2 x 1/2 inch brain deep on the head. While the injured Shera Ram had as many as 11 injuries on his person, which included one lacerated wound 6 x 1 x 1/2 cm. on the left side of the head 7 cm. above the left ear. He had one more injury on the head. THE other injuries were of course on non- vital part of the body like scapula, legs and hands. THE injury report is Ex.P-44. Now before proceeding further we may straightway come to direct evidence produced, being of P.W. 2, 6, 7 and 11. THEn, we may consider other evidence also, as may be necessary. We may first of all deal with the evidence of P.W.7 who is the injured witness being Shera Ram. Of course, he happens to be brother of the deceased. This P.W. 7 has stated that he along with his brother Shivji Ram and Balu had obtained land from Gram Panchayat towards the south west of the village for which three Pattas have been granted by the Pachayat for the Bara, and is in their possession for the last 8-10 years. Since 2- 2 11/2 months ago they had erected a fencing thereon, at that time Bhera Ram and Sadula Ram told that they will not allow them to take Patta. The controversy was that they wanted to take Patta while witness stated that we wanted to take Patta. He stated that there is a Kheri situated towards north of the Bara at a distance of 2-3 paces; on the fateful day at about 9-10 in the morning the three persons were repairing the fencing (? ? ? ? ??.?). At that time the seven accused persons were dismantling the northern and southern fencing. The accused persons Bhera Ram, Surja Ram, Mohan Ram and Gordhan Ram were armed with Barchhi, while Chuna Ram and Nanak Ram were armed with Jei with iron homes. Sadula Ram was having Lathi; while they were so dismantling the fencing, Shivji Ram and the witness etc. asked them as to why they are dismantling it, and thereupon Bhera Ram and Sadula Ram exhorted, that all these should be killed. Then, Bhera Ram and Surja Ram simultaneously inflicted Barchhi blow on the head of Shivji Ram, as a result of which Shivji Ram fell down. Then, all seven persons started belabouring Shivji. When, this witness came near, and requested not to beat, they left Shivji and started beating him. Mohan Ram inflicted Barchhi blow, which landed on the left side of his head, then Chuna Ram inflicted a Jei blow on the right leg, and he fell down, then all of them started beating, whereupon Dhuri came, and lied on the witness. Balu and Mangilal while standing on the right side requested not to beat, then seven persons treating them to have died, went away. After some time Shivji Ram expired. He did not go to the police station. However, after about one hour police came on the spot, and he gave report to the S.H.O., which is Ex.P-9, and signed it. Then, he has proved various articles, documents, and recoveries. On court question, as to why did he make complaint of Investigating Officer, he stated, that the I.O. had prepared the statement on his own without asking the witness, and was in collusion with the accused persons. Then, in cross- examination, good length of cross examination was directed only on the aspect of his making the said complaint. Then, he has deposed that Dhuri came on the spot, and she tied her Odni on the head of Shivji Ram, though it is not mentioned in Ex.P-9. According to him Pattas were issued some 2-3 months before the incident. Those Pattas are thereon record. The fencing existed around entire 5400 (Sq. Feet) land, which fencing was erected 10 years ago, but since it was damaged at many places it was being repaired on that day. He has denied existence of any way through that land, and deposed that no way goes to Delana Well. He has stated that he collected stones and 'Mood' in the Bara after getting Patta. Then, detailed questions were asked as to how much amount was paid for the material, in whose vehicle they were procured, and so on. Then, he was asked about sequence of infliction of injuries. Then, he was also asked about omission to mention name of father of Chuna Ram in Ex.P-9 i.e. wrong mention of father's name etc. Then, he has stated that Bhera Ram, and Surja Ram simultaneously inflicted Barchhi blow on the head of Shivji Ram, and he cannot say, whose blow hit on the head of Shivji. Then, he was confronted with certain portions of Ex.P-9, and he had expressed inability to detail, as to how many injuries were inflicted from the reverse side of Barchhi, and on which part of the body of the deceased. He has also expressed inability to depose, as to how many Jei injuries were inflicted on his brother. Of course, he has maintained that in the first instance Shivji Ram was belabored, then he was given beating. Then, he was suggested names of various persons, as the persons dismantling fencing, but he has denied that suggestion. Then, he has stated that in 1981 there were elections of Gram Panchayat, but he does not remember as to whether deceased and accused Bhera Ram were candidates from the Ward No. 1, or that in that election the deceased lost the election, and Bhera Ram won. Then, he has admitted that in December, 1981 election of Sarpanch also took place, wherein present Sarpanch Dhura Ram contested against Jag Ram, who is nephew of accused Bhera Ram, and is cultivating the land with Bhera Ram. Then, he has deposed to be knowing Satya Narain, who is Dharambhai. He has denied the suggestion of this land being sold to Satyanarain Mal. He has maintained that his brother was given beating inside the fencing, and he had fallen in the fencing itself. He has also denied the suggestion about the said land being cremation ground, or burial ground for burying the dead bodies children. He has denied the suggestion about villagers of Somalsar having given application on 21/3/1983 to S.D.M. about Satyanarain Mal obstructing way by fixing stones. He has maintained that villagers never made objection against the sale of land. He has deposed ignorance about any appeal having been filed in Panchayat Samiti Nokha. He has also denied the suggestion about the villagers having advanced good counselling to Satyanarain Mal, whereupon the later had given up the idea of raising construction over the land. He has denied the suggestion about fencing having been erected in the last night only, so also on account of enmity with Bhera Ram, Bhera Ram, his brother Sadula Ram, and Sadula Ram's three sons Surja, Mohan and Nanak having been falsely implicated. This is the entire evidence of P.W. 7. Then, P.W. 2, P.W. 6 and P.W. 11 have in all material particulars corroborated the evidence of P.W. 7, and the evidence of all the four witnesses has been discussed, dealt with and appreciated in detail by the learned trial court in para-20 of the judgment, running into more than three closely typed full scap pages. The learned trial court has noticed all the criticisms levelled against the evidence of each of the four witnesses, and for good reasons have negatived the criticism. Then, we come to the evidence of Dhura Ram, P.W. 8 who was Sarpanch at that time since 1978. Of course, he has proved that the Collector, Bikaner vide order dt. 12/1/1983 had ordered conversion of the land into Abadi, the three persons moved application for grant of Patta for which necessary proceedings were taken, and Pattas were granted. This witness has proved the various documents including application, proceeding of Panchayat, site plan, cash book entry about depositing price of the land, and the Pattas. The Pattas have been proved to be Ex. P-16, Ex.P-20, Ex.P- 24, while the applications are Ex.P-12, 17 and 21. The order of the conversion passed by the Collector on 12.1.1983 has been proved as Ex.P-30 and P-31. He has proved that on that land neither there was any cremation ground nor there was any way. He has stated that accused Bhera Ram was Panch in the Gram Panchayat of that area, and he is Panch even now, and that accused Bhera Ram wanted to take this land. He has also proved various memos prepared by the police during investigation. He has also proved and maintained that against the grant of Patta appeal was filed by accused Bhera Ram in Panchayat Samiti where from interim stay was issued, being Ex.P-27, which was vacated on 1.4.83 vide order Ex.P-28. Then, a further appeal was filed by Bhera Ram before Additional Collector, Bikaner. Then, P.W. 5 Hanuman Das, is the employee, being Record Keeper in Panchayat Samiti since 1960, has proved the fact of Bhera Ram filing appeal, and passing of the stay order, dismissal of that appeal, and order having been further challenged in revision before the Collector. ;