S. K. SHARMA, J. - (1.) THIS appeal owes its origin in the judgment dated August 01, 1997 of the learned Additional Sessions Judge, Kotputali, District Jaipur, whereby, the accused appellants were convicted and sentenced for having committed the murder of Kanha and Sultan, as under:- 1. Accused appellants Gada Ram and Kailash Under Sections 302 of the Indian Penal Code. Imprisonment for life with fine of Rs. 100/- each in default, to further suffer three months' rigorous imprisonment. Under Sec. 147, 148, 324, 149, 323/149 of the Indian Penal Code. Rigorous Imprisonment for one year for each of the offences. Under Sec. 325/149 of the Indian Penal Code. Rigorous Imprisonment for two years each and a fine of Rs. 200/- in default, to further suffer one months' rigorous imprisonment each. Under Sec. 447 of the Indian Penal Code. Simple Imprisonment for three months' each. Accused appellants Jahara, Jagannath, Bhagaram, Ram Karan, Mohru, Smt. Geeta, Smt. Rewati and Smt. Mewali. Under Sections 302/149 of the Indian Penal Code, Imprisonment for lie with fine of Rs. 1000/- in default, to further suffer three months' rigorous imprisonment. Under Sec. 147, 148, 324, 149, 323/149 of the Indian Penal Code. Rigorous imprisonment for one year each. Under Sections 325/149 of the Indian Penal Code. Rigorous imprisonment for two years each and a fine of Rs. 200/- in default, to further suffer one month rigorous imprisonment. Under Sec. 447 of the Indian Penal Code three months simple imprisonment.
(2.) ALL the sentences are directed to run concurrently. The synopsis of the prosecution case is that PW. 21 Virendra Singh, Station House Officer, Police Station, Kotputali, District Jaipur recorded a `parcha-bayan' (Ex. P. 1) of injured Gyarsa in B. D. M. Hospital, Kotputali at 10. 15 A. M. on June 22, 1988. In the aforesaid statement Gyarsa discerned that some long standing litigation was going on between his party on one side and Gada Ram Gurjar (appellant) on the other. In that back-ground, on June 22, 1988 at around 7-8 A. M. , accused appellants Gada Ram, Kailash, Bhaga, Jahara, Mohru, Ram Karan, Jagannath and wives of Ram Karan, Mohru and Jahara came on a Tractor to his fields at "battwala" in order to forcefully plough the same. In pursuance thereof they stared ploughing the fields. Sultan brother of Gyarsa, Surja, Kanha, Adisal and Banwari came to the spot to intervene. On their intervention accused appellants Gada Ram, Mohru, Ram Karan, Jahara and Kailash assaulted Kanha and Surja with Farsies made assault. In the assault, Sultan was belaboured by Gada Ram and others with Lathis and Farsies. Gyarsa was hit on the right hands wrist, left hand, head and neck with a Lathi by Kailash. Ram Karan assaulted Adisal, whereas, Banwari was assaulted by accused appellant Gada Ram. The women also participated in the assault with Lathies. Having felt that injured might have died, the appellants left the spot. All the injured were taken to Kotputali Hospital, where Kanha and Sultan were declared dead. On the basis of the aforequoted `parcha-bayan' Police Station, Kotputali registered as case under Sec. 147, 148, 302, 323, 324, 447, 325/149 of the Indian Penal Code and investigation commenced. Site was inspected, the autopsy on the dead bodies of Sultan and Kanha were conducted vide Ex. P. 17 and Ex. P. 18 by Dr. Ashok Sothwal, PW. 14. Injuries of Banwari, Gyarsa, Adisal, Mana, Goli were also examined by Dr. Ashok Sothwal. The statements of the witnesses under sec. 161 Cr. P. C. were recorded. The accused appellants were arrested and at their instance weapons of offence were recovered. On completion of investigation, charge sheet was filed. In due course, the case came up for trial by the learned Additional Sessions Judge, Kotputali. Charges under Sec. 147, 148, 302, 323, 324, 447, 325 and 149 of the Indian Penal Code were framed. The accused appellants denied the charges and claimed trial. The prosecution examined as many as 27 witnesses in support of its case. In the statements recorded under Sec. 313 Cr. P. C. the appellants pleaded innosance. Two witnesses were produced in support of defence version by the accused persons. The learned trial Court on conclusion of trial and after hearing the arguments convicted and sentence the accused appellants as indicated hereinabove. Mr. S. R. Bajwa, learned Senior counsel canvassed that no offence under Sec. 302 I. P. C. is made out from the prosecution evidence against the appellant. The testimony of prosecution witnesses is riddled with innumerable contradictions and infirmities casting a grave shadow of doubt on the same. The prosecution witnesses have indulged in making material improvements, in Court, upon their earlier statements made before the Investigating Agency.
(3.) IT is further contended that the land in dispute was in possession of accused appellants Gada Ram and the complainant party came to the land in order to take forceful possession of the same. The complainant party assaulted appellants Gada Ram and his son Kailash. The possession of the accused appellants is also borne out from the documents namely order or temporary injunction, Ex. D. 25, Agreement, Ex. D. 5, Will, Ex. D. 6 and "bahi" (Account book) Ex. D. 3. It is further urged that the accused appellants were bestowed with the valuable right of private defence of their persons as well as property as the complainant had entered in the fields in their possession and assaulted accused appellants Gada Ram and Kailash. It is further contended that the prosecution has miserably failed to spell out the proximate cause and genesis of the occurrence. The presence of alleged eye witnesses at the place of incident does not find mention in the First Information Report. The possibility as such of introducing these alleged eye witnesses subsequently has not been conclusively ruled out. All the alleged eye witnesses happen to be close relations of the complainant party and hence are partisan witnesses. Their testimony has to stand the test of strict appreciation of ocular evidence of the prosecution, but it stands in contradiction with the medical evidence. The defence evidence produced by the appellants has been rejected by the learned trial Judge in a callous manner. ;