R.S.VERMA,J. - (1.) LEARNED Addl. Sessions Judge No. 2, Jodhpur, vide his judgment dated 10 -11 -1976 rendered in Sessions Case No 54/74 has convicted appellant Bhika of an offence Under Section 302, IPC and has sentenced him to under go imprisonment for life. He has convicted Bhika of offence Under Section 148 IPC and has sentenced him to rigorous imprisonment for nine months and to pay a fine of Rs. 50/ - and in default to undergo further rigorous imprisonment for two months. He has also convicted him of offences Under Sections 325 and 323 read with 149, IPC but has refrained from passing any separate sentences on these counts.
(2.) APPELLANTS Mohabbat Singh, Ganpat Singh, Jethia, Gunia Rama, Bena Ram, Aasu Ram, Deva Kam Gayad, Jai Ram and Ugia have been convicted by the same judgment for offence Under Section 148, IPC and each one of them has been sentenced to under go rigorous imprisonment for six months and to pay a fine of Rs. 10/ - and in default to under go further imprison -ment for one month. Each one of them has been convicted of an offence Under Section 325 read with 149, IPC and has been sentenced to undergo imprisonment for one year and to pay a fine of Rs. 20/ -and in default, to undergo further imprisonment for one month. Each one of them has been further convicted of an offence Under Section 323 read with 149, IPC but no separate sentence has been passed on this count. Aggrieved they have come in appeal. Briefly stated the prosecution story is that Smt. Mira P.W. 1 had three sons, viz. P.W. 3 Umar Dan, P.W. 8 Bhanwar Dan and Jodh Dan (deceased). P.W. 2 Hukam Dan is son of P.W. 8 Bhanwar Dan while P.W. 4 Babu Dan P.W. 9 Mohan Dan are sons of Jodh Dan. P.W. 10 Chhagani is wife of aforesaid Jodh Dan. It is alleged that Umar Dan Jodh Dan and Bhanwar Dan were in possession of Khasra No. 323 situated on the outskirts of village Netra and on the date of the incident, viz., 7 -7 -1974 a crop of Bajri, Month and Gwar was standing there upon. That day at about 3 p.m, Bhanwar Dan, Umar Dan and Jodh Dan were carrying out 'Ninan' operations in the said field. P.W. 1 Smt. Mira was standing at that time in front of her Dhani, which is in the vicinity of this field. P.W. 2 Hukam Dan was grazing his cattle in a near by field of Kesa and Gangia. All of a sudden, the appellants named above along with some other persons entered the field where Bhanwar Dan, Umar and Jodh Dan were carrying out 'Ninan' operations. Mohabbat Singh was armed with a gun while Ganpat was armed with a sword The other appellants were armed with lathis. The appellants wanted to take possession of aforesaid field forcibly. The appellants bad with them their flock of sheep as well, which they drove in the Bajari crop of the said field. Seeing the appellants committing trespass into the field with their flock of sheep, Jodh Dan shouted and requested P.W. 1 Smt. Mira to bring his camera, so that he may photograph the appellants committing trespass in the field. At this Smt. Mira brought out a camera from her Dhani and went to the field and handed over the camera to Jodh Dan. Jodh Dan then started taking some photographs of the appellants. At this, a gun shot was heard and the appellants started belabouring Jodh Dan. Bhanwar Dan, Umar Dan and Smt. Mira. Seeing this, P.W. 2 Hukam Dan, P.W. 4 Babu Dan, P.W. 9 Mohau Dan and P.W. 10 Chhagani rushed to the filed in question; at which the appellants started belabouring them also. The appellants gave indiscriminate beating to Jodh Dan and his aforesaid companions and the incident was witnessed by P.W. 5 Deepa Ram, P.W. 6 Kesa Ram, P.W. 7 Ganga Ram and P.W. 13 Sukhdeo, P.W. 2 Hukam Dan after receiving the beating, went to police station, Mathania, and lodged a written report of the incident Ex. P. 1. On the basis of report Ex. P. 1, a formal report Ex. P. 46 was recorded at 9.30 p.m. by Devi Lal, S.H.O. (PW 25) for offences Under Sections 447, 147, 148, 149, 427 and 323 IPC. The prosecution story, further, is that the camera of Jodh Dan was snatched away by one of the appellants during the assault. Jodh Dan fell down at the spot due to his injuries and eventually dies as a result thereof.
(3.) DEVI Lal after recording the FIR, proceeded to the spot and the next morning i.e. 8 -7 -74, he prepared a site plan Ex. P. 47 and its legend Ex. P. 40. He examined the dead body and prepared a memo Ex. P. 41 the same day. He also prepared a Panchnama Ex. P. 42 in this regard and recovered blood stained and control soil vide Ex. memos P. 43 and P. 44.;