SHARMA, J. - (1.) THIS criminal appeal under Section 374 IPC by the accused appellants, namely Ratan, Madan and Sawra Ram @ Sawarmal arises out of the judgment and order dated September 7, 1998 passed by the learned Additional Sessions Judge, Kishangarh (Ajmer), thereby holding the accused appellants guilty for the offence under Secs. 302 read with Sec. 34 and 323 read with Sec. 34 I. P. C. While convicting the appellants, the learned Additional Sessions Judge has sentenced each of them to undergo life imprisonment with a fine of Rs. 1000/-, in default of payment of fine, to further undergo six months rigorous imprisonment on the first count, and each to undergo 3 months imprisonment with a fine of Rs. 100/-, in default of payment of fine, to further undergo one months' rigorous imprisonment, on the second count.
(2.) THE prosecution story, in brief, unfolded during trial is that on 26. 10. 96 at 9. 05 PM, a Parcha Bayan (Ex. P-6) of injured Harji S/o Shri Ram Karan Gujar was recorded in the hospital at Kishangarh. In his parcha bayan, injured Harji has stated that in the evening he was at his field. His brother Badha (deceased) and Ratan S/o Shyokaran were also there. At about 4. 30 P. M. when they were irrigating their field, Ratan S/o Rameshwar, Madan @ Mada S/o Rameshwar and Sawara Jat residents of village Dholpuria came there duly armed with Lathis and fawdas and told them that they will irrigate the field after breaking the `odha'. When they prevented them from doing so, the accused persons started inflicting blows with their weapons. THEse accused persons gave them severe beatings with their weapons. On raising hue and cry by the members of complainant side, Bhanwar S/o Ratan, Gopi S/o Meva came to the spot but by that time the accused had murdered Badha end thereafter the accused ran away. On hearing noise, the villagers namely, Mangla, Chhitar, Madan, Panchu etc. came there. THEse persons, on seeing the precarious condition of the injured persons, took them to the hospital in a Jeep of one Naurat. THE dead body of Badha was lying in the field. Lastly, the injured in his parcha bayan has stated that on preventing the accused persons from breaking Odha, they attacked with an intention to kill them, killed Badha and badly injured him and Ratan. On this parcha bayan (Ex. P. 6), the police registered a case for offence under Secs. 302, 307 and 34 I. P. C. vide FIR No. 173/96 (Ex. P. 7) and proceeded to investigate the case. During investigation, the police prepared site plan Ex. P. 29 & site inspection note Ex. P. 30, got injured Harji and Ratan medically examined, vide Ex. P. 25'and Ex. P. 26. The accused persons namely; Madan, Ratan and Sawra were arrested vide arrest memos Ex. P. 19, Ex. P. 20 & Ex. P. 21 respectively. The police also recovered Phawadas from the accused vide recovery memo Ex. P. 22, Ex. P. 23 & Ex. P. 36 on their information, vide information memos Ex. P. 33, Ex. P. 34 and Ex. P. 35, site plan of recovery of Phawads was also prepared which is Ex. P. 18. Investigating Officer also got the accused medically examined and collected injury reports of Madan, Ratan and Sawra Ex. P. 1,2 & 3 respectively. Investigation Officer also prepared 'panchayatnama' of the dead body of the deceased Badha Ex. P. 12 and 'panchayatnama' of deceased Ratan Ex. P. 13, Investigation Officer also took in possession the blood smeared soil and control soil, woolen blanket, pollyster loongi of deceased Badha and one piece of wooden headlog of a cot and a pair of chhapal from the place of occurrence vide Ex. P. 14. The police also took in possession a Kurta made of khadi, Baniyan and Dhoti smeared in blood of deceased Badha vide Ex. P. 15. ; a Shirt, Baniyan, and Dhoti smeared in blood of deceased Ratan vide Ex. P. 16, and a turban, Shawl, Baniyan and Dhoti smeared in blood of injured Harji vide Ex. P. 17. The postmortem reports of deceased Badha and Ratan are Ex. P. 4 and Ex. P. 5. Investigating Officer also sent the recovered articles to FSL for chemical examination, the receipt of which is Ex. P. 8 and FSI report is Ex. P. 39, the police also recorded the statements of witnesses under Section 161 Cr. P. C. During investigation, injured Ratan succumbed to his injuries. After completion of investigation, the police submitted charge- sheet against the present accused-appellants in the Court of learned Judicial Magistrate, Kishangarh who committed the case to the Court of Sessions. After hearing the submissions of the counsel for the accused-appellant and Public Prosecutor, the learned trial court framed charges against the accused appellants under Sections 302, 323 and 447 I. P. C. , in the alternative, charge under Sec. 302/34 IPC was also framed. The charges were read over and explained to the accused, to which they denied and claimed trial. The prosecution in support of its case, examined as many as 20 witnesses. The trial court examined the accused persons under Section 313 Cr. P. C. for the purpose of enabling them personally, to explain circumstances appearing against them in the evidence. The accused persons did not choose to examine any witness in defence. After completion of trial, the learned Additional Sessions Judge having found the accused appellants guilty of the offences charged with, convicted and sentenced them as aforesaid. We have heard, the rival contentions of the respective parties.
(3.) IN assailing the conviction, the learned counsel for the accused appellant has argued that learned trial Court acquitted all the accused appellants of the offence under Section 447, and, therefore, the accused persons cannot be said to have reached the complainant party at the place where they were irrigating their fields, but on the contrary, it was the complainant party who went to the point of canal where the accused persons were diverting the water to their field. Thus the member of the complainant party were aggressors. The learned counsel has further argued that the occurrence took place at the spur of moment simply on the point as to who will irrigate the field first and during the process, both the parties inflicted injuries to each other. He submitted that the prosecution could not explain the injuries of the accused appellants. According to him, this was a case of free fight in which only those persons who are proved to have inflicted injuries or caused death can be held guilty of the offence individually committed by them. In the present case the learned trial court has also come to a conclusion and recorded a finding on the basis of prosecution evidence that it could not be established as to which injury was caused by whom and therefore, none of the appellants could be convicted for offence charged with. He has further argued that there was no previously enimity between the parties and only one lathi blow was inflicted to each deceased and as such no inference of common intention to cause death could be drawn and in the facts and circumstances of the case the offence does not travel beyond Section 325 I. P. C. Lastly, he has argued that the accused inflicted the injuries on deceased Badha and Ratan and injured Harji in self defence as the complainant party was aggressor and accused appellant also suffered injuries during the incident. ;