SHARMA, J. - (1.) IN between the residential areas of two related families, there stood a JAT-TREE. One family comprising of four real brothers viz. Hanuman, Deep Chand, Hoshiyar and Bharta Ram claimed the TREE of its own, whereas the other family that included their uncle Tota Ram, his son Jai Ram and grand sons Rajendra and Mohan, was of the view that the TREE belonged to it only. On the fateful day of June 3, 1992 when the four brothers made attempt to uproot the TREE, it proved fatal to two of them (Hanuman and Deep Chand) who lost their lives in the incident. Let us unfold the re'sume' of the case.
(2.) ALL the four appellants Jairam, Rajendra @ Papuriya, Mohan @ Ram Monohar and Tota Ram were arraigned before the learned Additional Sessions Judge Behrod (Distt. Alwar) for having committed murder of Hanuman and Deep Chand in Sessions Case No. 173/92. Learned Additional Sessions Judge vide judgment dated December 8, 1994 found them guilty, convicted and sentenced as under: (1) Mohan @ Ram Manohar u/s. 302 IPC to suffer imprisonment for life and fine of Rs. 1000 in default to further undergo six months SI. u/s. 307/34 IPC to suffer 7 years RI and fine of Rs. 500/- in default to further undergo 3 months SI. u/s. 323/34 IPC to suffer 6 months RI and fine of Rs. 100/- in default to further undergo 15 days SI. u/s. 342 IPC to suffer 6 months RI and fine of Rs. 100/- in default to further undergo 15 days SI. (2) Rajendra @ Papuriya u/s. 302 IPC to suffer imprisonment for life and fine of Rs. 1000 in default to further undergo six months SI. (3) Tota Ram u/s. 307/34 IPC to suffer 7 years RI and fine of Rs. 500/- in default to further undergo 3 months SI. u/s. 323 IPC to suffer 6 months RI and fine of Rs. 100/- in default to further undergo 15 days SI. u/s. 342 IPC to suffer 6 months RI and fine of Rs. 100/- in default to further undergo 15 days SI. (4) Jai Ram u/s. 302/34 IPC to suffer imprisonment for life and fine of Rs. 1000 in default to further undergo six months SI. u/s. 307 IPC to suffer 7 years RI and fine of Rs. 500/- in default to further undergo 3 months SI. u/s. 323/34 IPC to suffer 6 months RI and fine of Rs. 100/- in default to further undergo 15 days SI. u/s. 342 IPC to suffer 6 months RI and fine of Rs. 100/- in default to further undergo 15 days SI. ALL the sentences were directed to run concurrently. The appellants have impugned the aforequoted judgment in the instant appeal. A written report (Ex. P. 1) was lodged by Hoshiyar Singh (PW. 1) with the Police Station Mandhan on June 3, 1992 at 9. 15 p. m. with the averments that around 5. 30 p. m. he alongwith his brothers Hanuman, Deep Chand and Bhartha Ram had gone to uproot the JAT-TREE belong to them. They could only dig a pit about five ft. deep. Suddenly his Tau (uncle) Tota Ram, his son Jai Ram and grand sons Mohan and Rajendra @ Papuriya armed with Pharsi, axe and lathies came over there and made assault on them. He and his brothers received injuries. They were thereafter dragged and detained by the assailants in their house. On hearing their hue and cry Gyarsi Lal and Leela Ram intervened. Jagmal, Laxman, Balveer and others removed them from the custody of the assailants and got his three brothers admitted in the Hospital. Police Station Mandhan registered FIR No. 51/92 under sections 307, 323 and 342/34 IPC and investigation commenced. After the death of Hanuman and Deep Chand the case was converted into section 302 IPC. The investigating officer inspected the site and recorded the statements of the witnesses under Section 161 Cr. P. C. The dead bodies were subjected to autopsy. Injured were medically examined. Accused were arrested and the weapons of offence were recovered at their instance. Blood smeared clothes, soil and weapons were sent to FSL and on conclusion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Behrod. Charges under Section 302 IPC in the alternative 302/34 IPC, 307 IPC in the alternative 307/34 IPC, 342 IPC in the alternative 342/34 IPC, 323, 325 IPC, in the alternative 323, 325/34 IPC were framed. The accused denied the charges and claimed trial. The prosecution examined as many as 28 witnesses. Accused Mohan in his statement under Section 313 Cr. P. C. pleaded that he was not present at the site and way away on duty. Whereas the other accused pleaded right of private defence and stated that it was Bharata Ram who accidentally inflicted the injury on the head of Hanuman. The learned trial judge on hearing the final submissions convicted and sentenced the accused appellants as indicated hereinabove. The case of the prosecution is mainly based on the eye witness account of injured witnesses Hoshiyar Singh (PW. 1) and Bharta Ram (PW. 26 ). The evidence is sought to be corroborated by the testimony of Medical Jurists Dr. Shiv Narain (PW. 21), Dr. M. K. Singhal (PW. 22) Dr. P. C. Vyas and Dr. Surendra Kumar Sharma (PW. 28 ). Then comes the evidence of Ram Singh Bishnoi (PW. 25) and Deena Ram Khatana (PW. 27), the investigating officers. Before analysing the testimony of eye witnesses we deem it necessary to refer the injuries sustained by the deceased as well as the injured persons. Injury sustained by Hanuman Singh (deceased) : Incised wound 6 cm x 1. 5 cm. x 3. 5 cm fresh profuse (up to bone) Rt. Parietal region bleeding Injuries sustained by Deepchand (deceased) : 1. Contusion 5 cm. x 3cm. Rt. Parietal region @ Swelling. 2. Contusion 3 cm. x 5 cm. Lt. Parietal region @ Swelling Injuries sustained by Hoshiyar Singh (injured) : 1. Lacerated wound 2. 5 cm. x 1/2 cm. x 1/2 cm. Rt. Parietal region. 2. Abrasion 2. 5 cm. x 1/2 cm. Rt. Scapular region 3 Bruise 18 cm. x 2. 5 cm. Rt. scapular region redish coloured 4 Bruise 15 cm. x 2. 5 cm. Interscapular region with redish coloured. 5. Bruise with 8 cm. x 1. 5 cm. Rt. interscapular redish coloured region 6. Abrasion with 9. 5 cm. x 1/2 cm. Back of chest redish colour lower part 7. Abrasion with 10 cm. x 1/2 cm. Lt. lumber region redish colour 8. Abrasion with 14 cm. x 3/4 cm. Lt. lumber redish colour region Injury sustained by Bhartharam : Lacerated wound 6 cm. x 1. 5 cm. x 3 cm. @ bleeding & blood Rt. Parietal region clot. At this juncture reference to injuries sustained by accused Rajendra vide Ex. D. 11 also appears necessary. Injuries of Rajendra (accused) : 1. Lacerated wound with Redish Bluish blood clot 3 cm. x 2 cm. x skin deep over Rt. Parietal Ocipital region of the skull 2. Pain over the Rt. Shoulder 3. Pain over Rt. Buttock.
(3.) AS already noticed in the FIR Ex. P. 1 Hoshiyar Singh (PW. 1) did not give the details as to who caused injury to whom. But in deposition before the learned trial court Hoshiar Singh (PW. 1) stated that while they were digging the pit in order to uproot the JAT TREE, the appellants armed with farsi, axe and lathies assaulted on them. Accused Mohan inflicted farsi blow on the head of Hanuman, Bhartaram who was standing in the pit received blows of axe inflicted by Jai Ram, Totaram and Rajendra gave blows with sticks. When Deepchand intervened Rajendra and Totaram inflicted injuries on his head. He (Hoshiyar Singh) was beaten by Tota Ram and Rajendra. Thereafter he alongwith other injured were dragged by the accused persons to their Baithak (room) from where they were removed by Jagmal, Chiranji, Laxman, Ved Prakash and Balvir to the Hospital. In his cross examination Hoshiyar Singh although initially deposed that in the partition, the tree came in the possession of Totaram, yet in the next breath he changed his version and stated that it was wrong to suggest that TREE belonged to Totaram. He also stated that boundary wall existed in between his and Tota Ram's residential portions. Bhartharam (PW. 26) the real brother of Hoshiyar Singh (PW. 1) deposed that when he and his three brothers were making attempt to uproot the TREE, accused Totaram, Jai Raj, Mohan and Rajendra came over there. Mohan inflicted farsi blow on the head of Hanuman. Jairam inflicted axe blow on his head. Totaram, Rajendra and Hoshiyar Singh inflicted lathi blows on the person of Deepchand. In his cross examination he stated that they had spade and axe at the time of uprooting the tree. He admitted that Jairam and Rajendra also sustained injuries in the incident. Prakash Chand (PW. 2) stated that earlier JAT TREE, was owned by Hanuman but after partition it came in the portion of Tota Ram and on the date of incident Tota Ram owned and possessed the tree. He also deposed that Nohra (house) of Tota Ram was surrounded by boundary, the height of which was four feet. Chiranji (PW. 4) in his cross examination stated that on the date of the incident the tree was inside the boundary wall of Tota Ram. Sukh Ram (PW. 8) deposed that earlier the tree belonged to Hanuman and Deep Chand but after partition it came in the share of Tota Ram and on the date of incident the tree was in the possession of Tota Raj. Gyarsi Ram (PW. 10) in his cross examination admitted that on the date of incident Tota Ram, possessed the JAT-TREE, Deena Ram Khatana SHO (PW. 27) had drawn the site plan Ex. P. 3. He admitted that in the site plan JAT TREE was shown in the area of Tota Ram. ;