SHARMA, J. - (1.) - This is a criminal appeal filed by six accused appellants, who were tried by the Sessions Judge, Sikar, and who, by his judgment dated March 18, 1983, were found guilty for offences under sections 147,307 read with section 149, 325 read with sec. 149, 323 and 342 IPC. Each of them were sentenced to rigorous imprisonment for one year for offence u/s. 147 IPC rigorous imprisonment for five years for offence u/s. 307 read with sec. 149 IPC, rigorous imprisonment for five years for offence u/s. 325 read with sec. 149 IPC, six months r. i. for offence u/s. 323 IPC, and for three months rigorous imprisonment for offence u/s. 342 IPC, apart from the fine imposed.
(2.) THE prosecution case is that, on Nov. 17, 1981, Pooran Mal Pw. l, who is resident of village Chainpura in district Sikar was returning to his village at between 7. 00 and 8. 00 p. m. from Sikar after" selling the milk. He heard a noise coming from the side of the house of Kishna Ram, appellant No. 2. He came rushing to the house of Kishna Ram. He found that the accused-appellants and some ladies were beating Bhinwa Ram and his sons Chatru Ram and Meva Ram by lathies and stones. Kishna Ram and his sons had lathies in their hands while the ladies had stones. Bhinwa Ram and his two sons had fallen on the ground after sustaining injuries. Hearing the noise of this quarrel, Lakha Ram, Iser Ram, Balu Ram, Surja Ram Jats and Roopa Balai and other village people also reached there. THEreupon Mewa Ram injured was dragged into the house of Kishna Ram and the accused closed the door of the house. Bhinwa Ram and Chatru Ram were brought in a camel cart and were admitted in hospital at Sikar. Mewa Ram was confined in the house of Kishan Ram when the report was lodged. On the basis of the first information report to the above effect lodged by Pooran Mal Pw. 1 at Police Station Sadar, Sikar, a case was registered at the police station for offences U/ss. 147, 148, 149, 336,342 and 307 IPC. After investigation, the police Tiled a charge sheet against the present appellants in the court of Judicial Magistrate, Sikar. THE Judicial Magistrate, Sikar, committed the case to the court of Sessions Judge, Sikar, and, the Sessions Judge, Sikar after trial, held all the accused appellants guilty for various offences mentioned above and sentenced them as aforesaid. All the six accused have come in appeal before this Court. The Sessions Judge held that it was not a disputed fact that the quarrel took place on Nov. 17,1981, in which Mewa Ram, Bhinwa Ram and Chatru Ram received injuries. It was also not in dispute that Mewa Ram had been tied inside the house of Kishna Ram and it was only when the Station House Officer, Police Station Sadar, Sikar reached the spot after the lodging of the first information report that Mewa Ram was rescued. As regards the alleged eye witnesses Lakha Ram and Surja Ram, the trial court held that they were brothers of Bhinwa Ram injured and had their residence nearby the house of Bhinwa Ram. Pooran Mal, first informant was himself grandson of Bhinwa Ram. The Sessions Judge did not accept the statements of Pooran Mal, Lakha Ram and Surja Ram that they had witnessed the incident from the beginning to the end. They had reached at the place of occurrence after hearing the noise of quarrel and he held that Pooran Mal reached at the spot after Bhinwa Ram and Chatru Ram have been beaten and Lakha Ram and Surja Ram also reached after the assault had started. The Sessions Judge further stated that since these witnesses were not there when the incident started, it was not possible for them to depose as to which of the accused inflicted injuries which of the injured first and the sequence in which the beating, was given. However, he did not disbelieve the reaching of these witnesses at the place of occurrence on hearing the noise and when Mewa Ram was taken inside in the house. As regards Roopa Ram PW. 7, the trial court held that he was resident of another village called as Dhani Salam Singh and his presence at the time of the incident was not believed. The learned Sessions Judge also said that the three above mentioned eye witnesses cannot be disbelieved merely because they had not seen the entire incident. They had seen part of the incident. As regards the defence of right of private defence of person put forward on behalf of the appellants, the Sessions Judge held that it had not been established by evidence that right of private defence of person was available to the appellants. Firstly, the appellants had denied having caused injuries to Mewa Ram, Bhinwa Ram and Chatru Ram. It was also not established that who had inflicted injury on Kishna Ram accused. Apart from that, merely because Kishna ram accused had injury on his nose, the prosecution case cannot be held to be false. The Sessions Judge also stated that the accused persons also failed to establish that any of the three injured, or the first informant had inflicted injury on Kishna Ram and, therefore, in such circumstances, it was not for the prosecution to explain the injury. No first information report was lodged by Kishna Ram against anyone regarding inflicting of grievous injury on his nose and nor he filed any criminal complaint *in that respect. An argument was put forward before the Sessions Judge on behalf of the appellants that there was no public way in front of the house of Kishna Ram and the incident took place in front of the house of Kishna Ram and, therefore, injured side were aggressors. On the basis of evidence on record, the Sessions Judge held that there was a way in front of the house of Kishna Ram and, therefore, Mewa Ram could have an occasion to pass by that way. In these circumstances, it was held that the injured side were not aggressors. The Sessions Judge found that Mewa Ram had as many as 13 injuries on his body and that his right eye ball had been perforated and vision therefrom was lost. Bhinwa Ram had as many as five injuries and he was admitted in Sri Kalyan Hospital, Sikar in an unconscious state with profuse bleeding from the right ear with left side facial paralysis. He was having convulsions and his eyes were dilated with sluggishly pupil on right side. On X-ray examination of skull of Bhinwa Ram, it was found that there was fracture of both parietal and occipital bones. Chatru Ram sustained five injuries which were simple and caused by blunt weapon. Thus the version of the injured was corroborated by medical evidence and on the basis of the evidence adduced, the Sessions Judge found all the appellants guilty as aforesaid. It was contended before me by the learned counsel for the appellants that police statement of Mewa Ram PW 4 was recorded 8 days after the incident and that of Surja Ram PW. 8, after a fortnight. It was urged that recording of delayed police statements casts a doubt in the prosecution case. The learned counsel for the appellants further urged that kishna Ram had sustained injuries during the incident. The incident took place in front of the house of Kishna Ram. That, according to him, showed that the injured party were aggressors and the appellants acted in right of private defence of their person. The learned counsel also argued that the prosecution has failed to explain the injuries sustained by Kishna Ram and moreso, when the injury on the nose was grievous and, therefore, the prosecution has not put forward the correct genesis of the case and the manner in which the entire incident took place. He also urged that there was not specific allegation against any of the appellants regarding their inflicting various injuries on the three injured. The learned counsel also contended that there was no unlawful assembly formed by the appellants because, admittedly, the incident had taken place near the house of Kishna Ram and at a place which was not a public way. In the circumstances of the case, it was urged that it cannot be said that the appellants had formed an unlawful assembly with common object to murder or attempt to murder Bhinwa Ram or any other injured. Since the prosecution has failed to establish individual acts of any of the accused, their conviction was not warranted. As regards the offence u/s. 342 IPC, it was contended that since Mewa Ram had inflicted injury on the nose of Kishna Ram, and further he jumped into the house of Kishna Ram, he was detained in the house' and tied. These were the submissions made before me by the learned counsel for the appellants. The learned Public Prosecutor and the learned counsel for the complainant supported the judgment of the Sessions Judge, Sikar. I have given my due consideration to the rival contentions put forward by the learned counsel for the appellants, the Public Prosecutor and the learned counsel for the complainant and have gone through the evidence on record. Before proceeding further, it could be useful to refer to the statements of Keshra Ram and Kishna Ram accused-appellants u/s. 313 Cr. P. C. Kishna Ram has stated in his examination u/s. 313 Cr. P. C. that there was no way before his house. Three days before this incident, Mewa Ram injured was harassing Banwari. Kishna Ram asked him not to do so. He further staled that on the date of the occurrence, Mewa Ram, Chatru Ram, Bhinwa Ram etc. came to their house and Mewa Ram inflicted a lathi blow on his nose, he became unconscious and he docs not know what happened thereafter. Keshra Ram stated in his examination that Mewa Ram etc. came to their house and they met his father Kishna Ram. They intervened and inflicted injury on each other. They closed the door of their house. Mewa Ram entered into the house by climbing over the wall. They tied Mewa Ram with the cot so that he may not be able to do any other mischief. This statement of Keshra Ram was adopted by Hardeva and Dana Ram accused also. So far as Sohan Lal and Govind Ram accused are concerned, they stated that they were on- their Fields and they live separately from their father.
(3.) THE Sessions Judge was right in holding that incident no doubt took place before the house of Kishna Ram and in that incident Mewa Ram, Bhinwa Ram and Chatru Ram received injuries. THE injured Mewa Ram PW. 4 and Chatru Ram PW. 6 have been examined by the prosecution. So far as Bhinwa Ram injured is concerned, he has expired. Mewa Ram has narrated the incident that he alone was passing in front of the house of Kishna Ram. When he was in front of the house of Kishna Ram, the later and his sons Govind Ram, Hardeva Ram, Keshra Ram, Sohan Lal and Dana Ram begun to absuse him. All of them had lathies in their hands. When he asked them as to why they were abusing, they started beating him. It was Hardeva Ram appellant, who first inflicted injury on his forehead and thereafter all other appellants starting beating him with lathies. He raised a cry and thereupon his father Bhinwa Ram and his brother Chatru Ram came from the side of the village. Bala Ram, Iser Ram, Lakha Ram, Pooran Mal and Surja Ram also came. Bhinwa Ram intervened to rescue his son Mewa Ram. THEreupon the appellants left Mewa Ram and begin to assault his father Bhinwa Ram. Bhinwa Ram fell in the way. His brother Chatru Ram also came near and he was also beaten by the appellants. THE appellants then tied Mewa Ram by his legs and dragged him inside their 'badi'. THEy closed the door. Govind Ram was asked to bring a rope. Hardeva Ram brought the rope and then Mewa Ram was tied with the legs of the cot. THEreafter, also the appellants inflicted lathi blows on his chest. THEy inflicted injury on his eyes and virtually damaged it. THE police rescued him. Chatru Ram has also supported the occurrence of the incident in this manner. Bhinwa Ram and Chatru Ram were at their house. THEy heard the cry of Mewa Ram reached the place of occurrence. THEy saw that the appellants were beating Mewa Ram by lathies and the latter had fallen on the ground. Bhinwa Ram intervened but the appellants also started beating him. THE witness when turn his face on the back side, he saw Roopa Ram, Lakha and Pooran Mal coming. Chatru Ram went to rescue his father, but, he was also beaten. Mewa Ram has dragged inside the house. Bhinwa Ram has become unconscious. Bhinwa Ram died after about six months of the incident. He remained unconscious for quite a long time in the hospital. Bhinwa Ram obviously could not be examined because he had expired. The Investigation Officer prepared the site plan Ex. P-3. At place marked E in Ex. P-3, it is said that Bhinwa Ram was beaten. The investigation officer found Mewa Ram tied inside the house of Kishna Ram at a place marked "a in Ex. P-3. Much emphasis was laid by the learned counsel for the appellants on the fact that there is only vacant land in front of the house of Kishna Ram and it was not a way. So far as site plan Ex. P-3 is concerned, it is true that a vacant land is shown towards the east of the house of Kishna Ram, but it is equally true that towards east of this vacant land is shown the field of Bhinwa Ram. Two ways are also shown one way is described as way to Dhani and the other way is described as towards Kothi Kishan Ram. One more way bifurcates from this way which leads to Kothi of Bhinwa Ram deceased. Cross examination was made from the witnesses regarding the position of this vacant land. It was stated by Pooran Mal PW. 1 that there is a chowk in front of the house of Kishna Ram which is about 50 steps wide. Towards east of this chowk is the field of Bhinwa Ram and on further east is the field of Keshra Ram and, thereafter, is the chowk of Pooran Mal. Mewa Ram PW. 4 has also slated that there was field of Kishna Ram on the east of his field and Kishna Ram had also field on the rorthern and southern side of his field. His field was about 300 steps away from his house. He has also stated that there is field of measuring 3 Bighas of his father Bhinwa Ram in front of the Haweli of Kishna Ram. The house of Mewa Ram is about 200 steps from the 'bertree' shown in Ex. P- 3. Houses of Iser Ram, Lakha and Surja, who were real brothers of Bhinwa Ram, are also nearby. Similarly Chatru Ram PW. 6 has stated that on the east of the open space in front of the house of Kishna Ram, there was field of Bhinwa Ram measuring 3 Bighas and, thereafter, on the east was the field of accused persons. There was a way in between them. Lakha and Iser were brothers of Bhinwa Ram. Their fields were also nearby. All of them lived separately on their fields. Their statements find support from the site plan Ex. P-3. Naturally, when Bhinwa Ram and his sons had their fields towards east of the vacant place in front of the house of Kishna Ram and there is also way leading to the fields from the Dhani, Mewa Ram must be having access from the place in front of the house of Kishna Ram. In view of the location of the fields of the injured in the house of Kishna Ram and also the location of the residential places of the injured on their fields, it is only a far fetched imagination that Mewa Ram, Bhinwa Ram and Chatru Ram came as aggressors to the house of Kishna Ram to inflict injuries on him. I am not ready to accept the contention of the learned counsel for the appellants that Mewa Ram and other injured came as an aggressors to the house of Kishna Ram to inflict injuries on Kishna Ram. There is a statement of Chatru Ram that before this incident, the appellants had closed the way leading to the field of the injured persons. This way was opened by Bhinwa Ram. This occurrence was five or six days before the date of the incident. To the same effect is the evidence of Mewa Ram, injured and I do not find any reason to disbelieve that. That was the reason which led to the incident. When Mewa Ram was passing in front of the house of Kishna Ram, he was abused. When he asked the accused party to desist, Hardeva inflicted injury on his forehead, and he raised the cry. When the fields of Bhinwa Ram and Chatru Ram are quite nearby, obviously, they came to the spot to rescue Mewa Ram and they were also badly beaten it is how that the incident is established by the prosecution to have occurred and the same has been proved by the evidence of Mewa Ram PW. 4 and Chatru Ram PW. 6. ;