- (1.) THIS appeal arises out of the judgment dated 7th of December, 1979, passed by Sessions Judge, Balotra, by which the learned Sessions Judge convicted accused Bhiksingh under Section 325, 147,447 and 323 I. P. C. and awarded a sentence of 3 years' rigorous imprisonment and. a fine of Rs. 700/- and in default of payment of fine to further undergo one year's rigorous imprisonment under Section 325 I. P. C. A sentence of three months' rigorous imprisonment and a fine of Rs. 100/- and in default or payment of fine, further 15 days' rigorous imprisonment under section 147 I. P. C. and a fine of Rs. 100/-and default of payment of fine to undergo 15 days' rigorous imprisonment under section 447 I. P. C. and a sentence of three years' rigorous imprisonment and a fine of Rs. 200/- was awarded under section 323 I. P. C. The other accussd-appellant and Jugatsingh, Amarsingh, Kheemsingh and Jagsingh were convicted under section 325/149, 147, 447 and 323 I. P. C. and were sentenced to 2 years' rigorous imprisonment and a fine a of Rs. 500/- and in default of payment of fine to further undergo six months' rigorous imprisonment under section 325/149. I. P. C. A sentence of 3 months' rigorous imprisonment and a fine of Rs. 100/-and in default of payment of fine to further undergo 15 days' rigorous imprisonment under section 147 I. P. C, a sentence of one moth's rigorous imprisonment and a fine of Rs. 100/- under section 447 I. P. C. and a sentence of 3 months' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine to further under go 3 moths' rigorous imprisonment under section 323 I. P. C. All the Sentences were to run concurrently.
(2.) THE incident which led to the prosecution of the present appellants along with two other accused, Revatsingh Neemsingh took place on 7. 08. 1978, in the field of Ugamsingh. THE case of the prosecution is that on 7th of August,1978 Ugamsingh along with Annaram Bishnoi, went to cultivate his field in Khasra No. 153. He engaged Annaram along with his tractor to plough the field. When Annaram was ploughing the field accused Amarsingh, Jugatsingh Bhiksingh, Jug-singh, Kheemsingh and Neemsingh by caste Rajput resident of Atmaram along with Revatsingh came into the field by forming an unlawful assembly with an intention to kill Ugamsingh. THEy were armed with harrow (Dhei), Kheemsingh and Jugatsingh were armed with harrow, while others were armed with lathies. THEy came into the field and started beating Ugamsingh, Ugamsingh raised an alarm, upon which Dungarsingh came and tried to intervene he also received injuries. Ugamsingh was assaulted by Bhiksingh, Neemsingh, Jugatsingh, Khimsingh, Jugsingh, Revatsingh and Amarsingh, when these accused parsons were giving beating to Ugamsingh Ananaram took way his tractor and left the place of the incident. Dungarsingh was also assaulted by these accused parsons, and while intervening he also received injuries. Doonsarsingh received as many as 7 injuries on his person and injury No. l received by him was grievous in nature. Umedsingh received as many as 13 injuries. THE report of the incident was lodged by Kanwarraj Singh P. W. l before Superintendent of police which was sent to the Police Station, Ramsar, where it was registered. After necessary investigation, the challan of the case was presented by the Police in the court of Judicial Magistrate, Barmer, from there the case was committed to the Court of Sessions Judge, Balotra came Barmer and the learned Sessions Judge, Balotra, tried the present appellants along with Revatsingh and Neemsingh under section 307, 148, 447, 323 and 325/149 I. P. C. THE prosecution in support of its case, examined 9 witnesses, while the accused examined 3 witnesses in support of their defence. THE learned Sessions Judge, after trial, acquitted Revatsingh and Neemsingh for all the charges. THE learned Session Judge also acquitted the present appellants under sections 307 and 307/149 I. P. C. but convicted all the appellants as mentioned above. The learned counsel for the appellants has submitted that the witnesses are not reliable witnesses and there are material contradictions in their statement. The Counsel for the appellants has also submit ted that the accused party was in possession over the field in question for the last 4-5 years and, therefore, they have a right to defend their possession and the complainant party was an aggressor. The lest submission made by the counsel for the appellants is that even if this Court comes to the conclusion that offence has been made out then in that circumstances as the incident relates to the year 1978 and more than 12 years' have elapsed, no useful purpose will be served in sending the accused persons behind the bars now. The learned Public Prosecutor, on the other hand, has supported the judgment of the learned lower court. I have looked into the statements of P. W. 3 Ugamsingh, P. W. 5 Doongarsingh, P. W. 6 Bhoorsingh, P. W. 7 Girdharisingh, P. W. 8 Dr. Biharilal and P. W. 9 Annaram. P. W. 3 Ugamsingh and P. W. 5 Doongarsingh are the injured eye-witnesses of the occurrence, while P. W. 6 Bhoorsingh and P. W. 7 Girdharisingh came on the scenes of occurrence during the course of the incident. " P. W. 9 Annaram was the tractor owner who had come to plough the field of the complainant party and who was there in the field when the quarrel started, but during the course of the incident he the left scene of the occurrance. P. W. 8 is Dr. Biharilal who examined the injuries of P. W. 3 Ugamsingh and P. W. 5 Doongar Singh. All these witnesses have been cross-examined by the counsel for the accused at length, but nothing could be elicited from their evidence from which it could be gathered that they are not speaking truth. P. W. 3 Ugamsingh and P. W. 5 Doongar Ram are the injured eye-witnesses of the occurrence. P. W. 3 Ugamsingh received 7 as many as 13 injures while Doongar Singh received injuries. The incident took place in the field of Ugamsingh and his Presence on the scene of the occurrence cannot be debated Similar is the case with P. W. 5 Doongarram who came there after hearing the crime of P. W. 3 Ugamsingh and tried to intervene and received the injuries. The presence of P. W. 6 Bhoorsingh and P. W. 7 Grdharisingh, who came at the scene of the occurrence when the incident was going on also appears to be reliable. The presence of P. W. 19 Annaram who was engaged by P. W. 3 Ugamsingh and who came there to plough the field also appears to be most probable. From the evidence of those witnesses it is clear that these witnesses were present there and they had been the occurrence and the learned lower court has not committed any illegality in placing reliance over the testimony of these witnesses. To prove the injuries on the person of the injured, P. W. 8. Dr. Biharilal has been produced who examined these witnesses, When they were brought to the hospital. According to P. W. 8 Dr. Biharilal Choudhary, P. W. 5 Doongarsingh received as many as three injuries out of which injury No. 1 was found grievous. So far as the question of right of private defence available to the accused is concerned, I am of the opinion that it was not available to them. The incident took place in the field of Ugamsingh when he tried to cultivate his field with the help of Annaram R. W. 9 and the person, who is owner of the field has got a right to cultivated for a period of 3 to 4 years and accused party was grazing their catties in the field of Ugamsingh, then that will not give any right to the accused party to obstruct the owner of the field to plough his field. In this view of the matter, the accused party has no right even to enter into the fields of the complainant party. , and to obstruct them in cultivating the field. No right private defence is thus available to the appellant. How coming to the point of sentence. It is an admitted fact that incident took place on 7th of August, 1978. Than 12 years have more elapsed. The offence proved against the appellant is only under sections 325, 147, 447,323 and 324149/49 and 325/149 I. P. C. and the accused remained behind the bars for about a month. No useful purpose will be served in sending the accused appellants behind the bars again after 12 years of the incident, in this view of the matter, I uphold the conviction of the appellant, but reduce the substance sentence to that of already undergone and impose a fine of Rs. 300q/- each and in default of payment of fine to undergo one year's rigorous imprisonment.
(3.) CONSEQUENTLY, the appeal is allowed in part, the conviction of the appellant is maintained but the sentences is reduced to already undergone and a fine of Rs. 3000/- each and in default of payment of fine each accused shall undergo three months' rigorous imprisonment. In case, the fine is deposited then out of Rs. l5,000/-,rs. 7500/- may be given to injured Ugamsingh and Rs. 7500/- may be given to Doongarsingh. Three months' time is allowed to the appellants to deposit the fine. .;