MOHINI KAPUR, J. - (1.) - Seven appellants before us, were tried by the Sessions Judge, Alwar for the offences under Sections 302, 302 read with sec 149 and Sec, 148 IPC. By his judgment dated 17. 05. !989 the learned Sessions Judge found all of them guilty of offences under sections 302, 302/149, and 148 IPC and sentenced them for life imprisonment and a fine of Rs. 250/-for the offence under Section 302 IPC or 302/149 IPC and six months imprisonment for the offence under Section 148 IPC. In default of payment of fine they were to undergo three months rigorous imprisonment. All the seven appellants have preferred this appeal against their conviction and sentence.
(2.) SEVEN accused in this case are members of two families. Hurmat and his three sons are accused and Amin Khan and his two sons are accused. Thus the accused consisted of two families, while the complainant party consists of Bhurekhan and his son Asin & daughter Mariam and grand son Vali Mohammed who is son of Asin and the deceased in this case is Sardar Mohammed son of Bhurekhan. The incident out of which the case arises occurred on 23rd Sept. 1988 in village Pilva, which falls under Police Station Sadar Alwar. The report lodged by PW. 1 Bhurekhan is Ex. P/l. According to this report on the same evening at about 5. 00 P. M. Sardar Mohammed was having his bath at the well. Seven accused armed with lathies, farsies and ballam (spear) came at the well where Sardar Mohammed was taking bath. All of them surrounded him and started beating. Sardar Mohammed shouted, upon which, Bhurekhan, Mariam, Asin, and Vali Mohammed ran towards that side and saw that all the accused were beating Sardar Mohammed. Accused Deenu had a farsi and Sardar had a ballam (spear) while the others had lathies. Deenu gave a farsi blow on the head of Sardar Mohammed, upon which Sardar Mohammed tried to escape,but others over-powered him and gave several blows. When Bhurekhan and otherreached that place, the accused ran away. Sardar Mohammed who was injured was brought first to the village and then he was taken to Alwar for treatment but on the way at about 9. 00 P. M he died. It was also mentioned in the first information report that there was enmity between two parties on account of dispute of land. As many as 11 witnesses were examined before the learned Sessions Judge, out of which PW. 5 is Dr. R. K. Agarwal, who conducted the postmortem and PW. 11 Rameshwar Prasad is Investigation Officer. Out of the remaining witnesses four witnesses, namely, PW. l Bhurekhan, PW. 2 Vali Mohammed, PW3 Mariam and PW4 Asin are the near relatives of the deceased Out of the remaining five, two are police witnesses, who had carried & sealed packets and the remaining three witnesses are hostile witnesses. They had not supported their police statements, hence the case against the appellants has to be decided on the basis of the four witnesses who are, father, brother, sister and nephew of the deceased. The learned Sessions Judge had admitted that there are contradiction & mistakes in the statements of PW. l to PW. 4 but still there is some consistency in their statements, therefore, they could be believed and on this basis he arrived at the conclusion that the seven accused had surrounded the decaesed Sardar Mohammed and inflicted several injuries upon him. It was observed that though these witnesses are of the same family, but as all of them saw the occurrence at the same time and they have deposed about it and they could be believed. Before coming to the contention which have been raised before us by the learned counsel for the appellants we may look in to the injuries which were found on the body of the deceased Sardar Mohammed and also look in to that part of the evidence by which different injuries have been assigned to various accused. But before doing so it would be proper to have a description of the well where Sardar Mohammed was taking a bath and the place from where the four alleged eye witnesses came to see the incident. The site plan has been prepared by the Investigating Officer and at the same time witnesses have been question-ed to find out more about the distance from the well where the occurrence took place and the house of the witnesses from where they went towards the well. The well at which the incident took place is known as Meethawala well. On the part of this well is a pucca room about 9' x 18' in size. Again on the east of this room there is a field of the complainant party followed by another field of the complainant party. Then there is a road. After the road there is open land and then the house of the complainant. Even the Investigating Officer has mentioned in the site plan that the house of the complainant is about two furlongs away from the well. The two fields of the complainant which come in between their house and the well are about two and half bighas in area. In one of the field there are trees of black plum, ficus religiosa, and eulcayptus etc. It is apparent that the well is not directly visible from the house of the complainant. The distance is about two furlongs or half a kilometer and in between there are trees also and a room near the well. If the occurrence took place at the well itself then the witnesess could not see through the room, and if at all they saw the incident they could have seen only when Sardar Mohammad ran towards the southern side in another field.
(3.) THE following are the injuries which were found on the deceased Sardar Mohammed: "1. 2-1/2" x 3/4 Lacerated wound bonedeep in upper part of pariecto occipital region Rt. side of skull clotts present with clotts. 2. 2-1/2" x 1/4" Bonedeep lacerated wound on upper and posterior part of left parietal region with clotts. 3. 1" x 1/2" Incised wound muscle deep in middle of posterior of left arm with multiple bruise of varying size 2" 1", 1" x 1/2", 1" x1/4", 1 x 1/2" extending from left shoulder to elbow posterior aspect with clotts crepitus feel under neath them. 4. Bruise 4" x 1" and 3" x 1" on upper part left forearm posterior and posterior aspect of l/3rd part left forearm respectively. 5. Bruises 2 1/2" x 1", 1" x 1/2" size on dorsum of hand (left) and proximal part of Index finger respectively with swelling all over dorsum of hand. 6. Lacerated wound 1" x 1/2" on proximal part of Right little finger anteriorly clotts-Nil. 7. Lacerated wound 1 J" x 1" and l" x 1/4', on upper-part left leg anteriorly clotts swelling all around upper part leg crepitus feel underneath them. Incised wound 2" x 1/2" lower I/3rd part leg left anteriorly muscle deep and clotts presents. Incised wound of varying side 1 1/2 x 1/4", 1" x 1", muscle deep on upper half of Right leg anteriorly clotts present. ;