SHARMA, J. - (1.) ALL the twelve appellants were indicted before the learned Additional Sessions Judge, Bayana Distt. Bharatpur for having committed murder of Sonpal and Vijay Singh in Sessions Case No. 42/1989. Vide judgment dated 17. 1. 1994, they were found guilty, convicted and sentenced by the learned trial judge as under : 1. Pratap 2. Chetram 3. Babu U/s. 302 IPC to suffer imprisonment for life and fine of Rs. 2000/- U/s. 148 IPC to suffer one year RI. U/s. 325/149 IPC to suffer two year RI. and fine of Rs. 1000/ -. U/s. 324/149 IPC to suffer one year RI. U/s. 323 IPC to suffer six months RI. (In default of payment of fine to further suffer one year RI. 4. Mahendra 5. Amarchand S/o Mungilal 6. Chimman U/s. 302/149 IPC to suffer imprisonment for life and fine of Rs. 2000/- 7. Lajwanta 8. Rajendra 9. Amarchand s/o Kesso 10. Man Singh U/s. 148 IPC U/s. 325/149 IPC U/s. 324/149 IPC U/s. 323 IPC to suffer two year RI. and fine of Rs. 1000/ -. to suffer one year RI. to suffer six months RI. to suffer one year RI. (In default of payment of fine to further suffer one year RI. + 11. Samandar U/s. 302/149 IPC to suffer imprisonment for life and fine of Rs. 2000/- U/s. 148 IPC to suffer one year RI. U/s. 325/149 IPC to suffer two year RI. and fine of Rs. 1000/ -. U/s. 324 IPC to suffer one year RI. U/s. 323 IPC to suffer six months RI. (In default of payment of fine to further suffer one year RI. + 12. Mungilal U/s. 302/149 IPC + U/s. 148 IPC + U/s. 325/149 IPC + U/s. 324/149 IPC + U/s. 323 IPC + (In default of payment of fine to further suffer one year RI. ALL the sentence were directed to run concurrently.
(2.) AGAINST this judgment of conviction and sentence that the present action for filing the appeal has been resorted to by the appellants. The prosecution case is woven like this. On the basis of Parcha-bayan (Ex. P. 3) Badan Singh (PW. 5), FIR No. 86/88 under Sections 147, 148, 149, 323, 302 IPC came to be registered by the Police Station Uchhain, Bharatpur. In the Parcha-bayan, Badan Singh, who was admitted in General Hospital Bharatpuron August 24, 1988 stated that in the morning around 10 a. m. when he along with his family members were digging the land in order to drain out the rain water accumulated in front of their house, Amar Chand, Chetaram. Rajendra, Mahendra, Mungi Lal, Man Singh, Samundra, Chiman, Babu, Amar son of Kesso, Lajwanta, Omi and Durga Pandit armed with lathies and pharsas came over there and started marpit. Samundra gave pharsa blow on the head of Badan Singh, whereas Omi and Durga inflicted blowswith lathi and pharsa. Chetram and Partap inflicted pharsa blows on the head of Vijay Singh. Amarchand and Lajwanta gave lathi blows on the person of Vijay Singh, Babu inflicted pharsa blow on the head of Sonpal and all the persons gave indiscriminate beating with lathies and pharsa's. Women of his family were also beaten in the occurrence. On hearing hue and cry, the villagers intervened and saved his life. Vijay Singh and Sonpal became unconscious and all the injured persons were taken to Bharatpur Hospital, Commencing investigation, the investigating officer inspected the site, arrested accused, recovered the weapons of offence at their instance, recorded the statements of witnesses under section 161 Cr. P. C. and on conclusion of investigation, charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Bayana. Charges under Sections 148, 302, 302/149, 324, 325, 323 and 326 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution examined as many as 20 witnesses in support of its case. Thereafter the statements of the appellants under section 313 Cr. P. C. were recorded. The appellants denied the allegations and claimed innocence. Thereafter 8 defence witnesses were examined and the learned trial judge after hearing the final submissions convicted, and sentenced the appellants as indicated hereinabove. At the outset, we would like to indicate the nature of the evidence led by the prosecution. To begin with there is a central evidence of five injured eye witnesses Mst. Ramdei (PW. 1), Badan Singh (PW. 5), Mst. Kesar (PW. 6), Harish Chand (PW. 7) and Shiv Singh (PW. 12 ). This evidence is sought to be corroborated by Girdhari Lal Investigating Officer (PW. 15), Rakesh Saxena, Addl. S. P. (PW. 20) Murari Lal (PW. 17) and Kamlesh Kumar (PW. 18) Dr. Ajay Kapoor (PW. 19) examined the injuries of the injured persons and conducted autopsy on the dead bodies. Let us now scan the testimony of the witnesses through whom the prosecution has to establish that the case against the appellants has been proved beyond reasonable doubt. A close look at the statements of Ram Dei (PW. 1), Badan Singh (PW. 5) and Shiv Singh (PW. 12) demonstrates that there was no previous enmity or dispute between the appellants and the complainant party. When Badan Singh, Vijay Singh and Son Pal (since deceased) started digging the mud wall to let out the accumulated rain water, the occurrence had taken place. Mst. Kesar (PW. 6) in her deposition stated that the accused obstructed the flow of water by putting a mud wall. As the obstruction by mud wall was made on the thorough fare, Vijay, Son Pal and Badan started demolishing the mud wall. Girdhari Lal Investigating officer (PW. 15) in his cross examination stated that Badan Singh, Son Pal and Vijay Singh started digging up the mud wall at point `x' of site plan (Ex. P. 2) and the accumulated water had entered the nohra where the huts of Mungi Lal, Chimman etc. stood and their fuel wood etc. were stored. This witness further deposed that as the road level was higher, it was nature for the rain water to accumulate. Harish Chand (PW. 7) deposed that the dispute was started over water. Vijay Singh and others were draining the water out by the side of the road. As soon as he bent down, the accused started abusing. It is contended by the learned counsel for the appellants that the rain water had accumulated in the `dagra' because, the level of the road was higher than that of the `dagra'. Rather than effect a cut in the road, the deceased and Badan Singh had dug up the mud wall that protected the nohra of the accused. The accumulated water caused inconvenience to both the parties, not the complainant party alone. Instead of going and approaching the Panchayat or other authorities for draining out the water from the `dagra' the deceased and Badan Singh took the law in their own hands to dig up the wall of accused Mungi Lal's Nohra which would have damage their huts and other valuable property. There is no evidence that the accumulated water posed any threat or danger of damage to the property of the deceased, mere inconvenience was not sufficient for the complainant party to take law in their own hands. The accused therefore, had a right to resist the mischievous act of the deceased and others to protect their house and health and it was the complainant party including the deceased, who had provoked the accused to take recourse to violence. It is next urged by the learned counsel that from the testimony of Badan Singh (PW. 5) and Harish Chand (PW. 7) it is established that the tractor and trolly carrying the injured had stopped in front of Police Station Ucchain but the report was not lodged. Thus there is a deliberate delay in lodging the FIR which creates doubt in the prosecution story. Learned counsel further canvassed that though there is evidence on record that many people from the village had gathered and intervened yet no independent witness from the village has been produced and only interested witnesses from the family of the deceased have been examined, who made material improvements in their statements and the true version of the incident did not come before the court. On a critical scrutiny of the eye witnesses as regards the beating of the two deceased as well as injured Ram Dei (PW. 1) Badan Singh (PW. 5) Kesar (PW. 6) Harish Chand (PW. 7) and Shiv Singh (PW. 12) it is apparent that they have not narrated the actual genesis of the occurrence. They have mixed truth with falsehood to such an extent that one can not be separated from other. The witnesses have not only tried to hide their provocative action, but have also made attempt to aggravate the seriousness of the incident by introducing weapons like `pharsas' being used by some of the accused, where as from the medical evidence causing injuries by sharp weapons has not been established. It is also contended by the learned counsel that no overt act was attributed to as many as five accused in Parcha Bayan, Ex. P. 3. The spot of occurrence is the place where all the twelve Jatav appellants lived and therefore, their presence was most natural. Hence there could be no formation of any `unlawful assembly' for the purpose of committing any offence and resistence against an unlawful act of the deceased and the injured in damaging the property of the appellant can not termed as formation of an unlawful assembly to commit any offence. It is lastly urged by the learned counsel that under the provisions of clauses 1 and 4 of section 105 IPC, the right of defence of their property had accrued to the appellants and they were justified in resisting the illegal acts of the deceased and the injured by force. Thus all the appellants deserve to be acquitted.
(3.) PER contra learned Public Prosecutor supported the impugned judgment of conviction and canvassed that the appellants had committed the offence in a calculated manner with premeditation and they have been rightly convicted by the trial judge. The contradictions in the statements of the prosecution witnesses are not material and the presence of the witnesses at the place of incident is quite natural. We have given anxious consideration to the rival submissions. Deceased Sonpal, as per the injury report Ex. P. 43, sustained incised would measuring 3 cm x 2cm. x 2 cm on temporal bone. Another injury on the forehead was laceration measuring 4cm x 2cm. x 1cm and the third injury was a bruise 4 cm x 2 cm on the right knee. Deceased Vijay Singh, according to injury report Ex. P. 46 received following injuries- (i) Incised would 5cm x 2cm x 1 cm on centre of skull. (ii) Incised would 3 cm x 1 cm x 1 cm or right side of skull. (iii) Laceration 2 cm x 1 cm x 1 cm on fore head. (iv) Bruise 5 cm x 2 cm on right arm. (v) Bruise 5 cm x 2cm on right fore arm. (vi) Bruise 4 cm x 2 cm on left arm. (vii) Bruise 4 cm x 2 cm on left fore arm. Vijay Singh died on August 24, 1988 where as Sonpal expired on August 28, 1988. Cause of their death as per the post mortem reports Ex. P. 48 and Ex. P. 49 was head injuries sustained by them. Dr. Ajay Kapoor (PW. 19) deposed that injuries were antimortem in nature and sufficient in ordinary course of nature to cause death. Badan Singh (PW. 5) as per injury report Ex. P. 45 received one incised wound (3cm. x 2cm. x 2cm.) on temporal bone, one laceration (4cm. x 2cm x 1 cm.) on forehead and one bruise (4cm x 2cm) on right knee. Harish Chand (PW. 7) sustained two bruises on right hand as per injury report Ex. P. 44. Smt. Kesar (PW. 6) received one contusion on left elbow and one bruise on right forearm as per injury report Ex. P. 43. Smt. Ram Dei (PW. 1) received one incised wound (5cm. x 1cm. x 1cm.) on left parietal bone and two bruises on right arm according to injury report Ex. P. 41. Shiv Singh (PW. 12) sustained two bruises on right elbow and on left back and one tear injury on left foot as per injury report Ex. P. 47. Except the grievous injury sustained by Smt. Kesar on right ulna, all the injuries caused to the injured witnesses were found simple in nature. ;