SHIV KUMAR SHARMA, J. - (1.) AS many as 9 accused were indicted for trial before the learned Additional Sessions Judge No. 3, Alwar in Sessions Case No. 24/1997 for having committed murder of Girdhari. Learned Judge vide judgment dated November 23, 1999 convicted and sentenced the appellants Sohan Lal, Kamruddin, Kallu, ASuddin, Rahmat Khan, Mauj Khan and Rahmuddin Khan as under:- Kallu: U/s. 302 IPc To suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer One Year Rigorous Imprisonment. U/s. 447 IPc To suffer Six Months Rigorous Imprisonment. U/s. 148 IPc To suffer One Year Rigorous Imprisonment. U/s. 325/149 IPc To suffer Two Year Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer three Months Simple Imprisonment. U/s. 324/149 IPc To suffer One and a half Year Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer Three Months Simple Imprisonment. U/s. 323/149 IPc To suffer Six Months Simple Imprisonment. Sohan Lal, Mauj Khan & ASuddin: U/s. 302/149 IPc To suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer One Year Rigorous Imprisonment. U/s. 447 IPc To suffer Six Months Rigorous Imprisonment. U/s. 148 IPc To suffer One Year Rigorous Imprisonment. U/s. 325/149 IPc To suffer Two Year Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer three Months Simple Imprisonment. U/s. 324 IPc To suffer One and a half Year Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer Three Months Simple Imprisonment. U/s. 323/149 IPc To suffer Six Months Simple Imprisonment. Kamruddin & Rahmat Khan: U/s. 302/149 IPc To suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer One Year Rigorous Imprisonment. U/s. 447 IPc To suffer Six Months Rigorous Imprisonment. U/s. 148 IPc To suffer One Year Rigorous Imprisonment. U/s. 325 IPc To suffer Two Year Rigorous Imprisonment and fine of Rs. 100/- in default to further suffer three Months Simple Imprisonment. U/s. 324/149 IPc To suffer One and a half Year Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer Three Months Simple Imprisonment. U/s. 323/149 IPc To suffer Six Months Simple Imprisonment. Rahmuddin: U/s. 302/149 IPc To suffer Imprisonment for life and fine of Rs. 1000/-, in default to further suffer One Year Rigorous Imprisonment. U/s. 447 IPc To suffer Six Months Rigorous Imprisonment. U/s. 147 IPc To suffer Six Months Rigorous Imprisonment. U/s. 325/149 IPc To suffer Two Year Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer three Months Simple Imprisonment. U/s. 324/149 IPc To suffer One and a half Year Rigorous Imprisonment and fine of Rs. 500/- in default to further suffer Three Months Simple Imprisonment. U/s. 323/149 IPc To suffer Six Months Simple Imprisonment. All sentences were ordered to run concurrently. Other accused Mahboob and Taiyab Khan were however acquitted.
(2.) SEVEN convicted appellants have assailed the impugned judgment by filing DB Criminal Appeal (No. 796/1998), whereas the complainant Raghuveer Singh has assailed the judgment of acquittal of accused Mahabood and Taiyab Khan by filing the DB Criminal Revision Petition (No. 188/1999 ). During the pendency of the appeal appellant Rahmat Khan died and proceedings against him stood dropped. The prosecution story is woven like this:-Informant Raghuveer Singh (PW. 1) submitted a written report on August 7, 1997 at 5. 30 PM to the SHO Police Station Malakhera Alwar stating therein that Prabhu Koli and his brothers mortgaged their agricultural land bearing Khasra No. 250 measuring 5 bighas to him. On August 7, 1997 around 2. 00 PM when the informant along with Chhote Lal, Rajendra, Munshi and Girdhari were in the process of ploughing the said land. Kallu, Kamru, Taiyab and Rehmu came over their on two tractors and started ploughing the land. When the informant protested they made attempt run him over by the tractor. In the meanwhile Asuddin, Mahboob, Mauj, Rahmat, Sohan Lal and Kamru armed with Farsi, Tanchia, Danti and lathies attacked on them. Mauj and Asuddin inflicted blows with Danti and Tanchia on the head of Girdhari, while Kallu and Rahmu ran him over by the tractor. When the informant intervened Asuddin, Taiyab and Kamruddin gave blows with Tanchia, Farsi and lathi on his head. Girdhari died on the spot whereas Chhote Lal, Lallu, Rajendra and Munshi sustained injuries. Police Station Malakhera registered a case under Sections 147, 148, 149, 323, 307, 308, 302 and 447 IPC and investigation commenced. On completion of the investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 3, Alwar. Charges under Sections 147, 148, 447, 302, 302/149, 307, 307/149, 325, 325/149, 324, 324/149, 323 and 323/149 IPC were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In their explanation under Section 313 Cr. P. C. , the appellants claimed innocence. One witness in defence was examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. In order to establish that death of Girdhari was homicidal the prosecution examined Dr. Sanjay Gupta (PW. 14), who conducted autopsy on the dead-body of Girdhari. As per post mortem report (Ex. P-33) Girdhari sustained following injuries:- " 1. Perforating injury on back on left side L-L (toom) region deep upto peritonial cavity size 12 x 5cm x deep upto peritoneum also fracture of 9, 10 & 11th rib on posterior side. 2. Abrasion: 4 x 2cm left side to the injury No. 1. 3. Incised wound 5 x 1. 5cm Margins regular on right parieto frontal region transversely. 4. Incised wound 5 x 1. 5cm on centre of head between both parietal bone longitudinally. margins regular. 5. Lacerated wound: 2 x 1cm x 0. 5cm in middle of left leg medical side. " The injuries were ante mortem in nature and cause of death was haemorrhage & shock due to injury to spleen & left kidney by injury No. 1. " At this juncture it will be appropriate to consider the injuries sustained by members of the complainant party and the accused persons. As per Injury Report (Ex. P-7) Raghuveer (PW. 1) sustained following injuries:- " 1. Lacerated wound 5 x 1 x 1cm. Anterio Posteriorly on scalp of left parietal bone region. 2. Bruise (Red) 3 x 1cm. just behind right ear longitudinal on right mastoid bone. 3. Bruise (Red) 4 x 1cm. Back of left arm longitudinal just above left elbow joint. 4. Bruise (Red) 5 x 1cm. Longitudinal wound on dorsal aspect of right forearm 2" below the right elbow joint. " As per Injury Report (Ex. P-10) Rajendra Kumar (PW. 2) sustained following injuries:- " 1. Lacerated wound 3 x 0. 2 x 0. 2cm. Oblique wound on scalp of left parietal bone region. 2. Bruise (Red) 4 x 1. 5 cm. Longitudinal wound on lateral side of left arm on upper part. 3. Bruise (Red) 2 x 1cm. Horizental wound on upper back just above superior border of left scapula. 4. C/o pain & swelling around left elbow. 5. Abrasion: a) 1 x 1cm. b) 1 x 0. 1cm. On lateral side of left elbow joint. 7 C/o Pain in left hand. 8. C/o pain over ribs on lateral side on left joint elbow left axilla. 9. C/o pain above left nipple. " As per Injury Report (Ex. P-11) Chhotey Lal (PW. 3) sustained following injuries:- " 1. Incised wound 5 x 1 x 0. 5cm. On scalp. oblique wound on left parietal bone region. 2. Abrasion 1 x 1cm. On scalp on right parietal bone region. 3. Bruise (Red) 10 x 1cm. Horizental wound on left upper back is above the superior scapular border of left scapula. 4. Abrasion 4 x 1cm. Horizental wound on left upper back 1cm above the supero- lateral side of injury No. 3. " As per Injury Report (Ex. P-34) Munshi Ram (PW. 4) sustained following injuries:- " 1. C/o Pain & Swelling over left hand. 2. C/o Pain & Swelling 4 x 2cm. On lateral half of right eyebrow. 3. Abrasion 0. 5 x 0. 5cm. Just above the superior margin of middle part of injury No. 2. 4. C/o Pain over thenar eminence of right hand. 5. C/o Pain over back on lower nibs & area between ribs & iliac crest on right side. 6. Abrasion 1 x 1cm on dorsal side of left foot. 7. Abrasion 1 x 1cm on left foot just below medial mallecolus. " As per Injury Report (Ex. P-35) Lallu Ram (PW. 5) sustained following injuries:- " 1. Incised wound 8 x 0. 7 x 0. 7cm. On scalp antero posteriorly in midline in middle part of scalp. 2. Swelling & C/o Pain on left hand. 3. Bruise (Red) 10 x 2cm. Oblique on back of left side 2" below left inferior scapular angle. 4. Bruise (Red) 4 x 1cm. On upper back of left side 2cm medial to medial border of left scapula. 5. C/o Pain chest on right side but no external evidence of injury seen. 6. C/o Pain on left knee joint but no external evidence of injury seen. " As per X-ray Report (Ex. P-38) Rajendra Kumar Ram (PW. 2) sustained fracture of lateral condule of Lt. humerous at his left elbow. As per X-ray report (Ex. D-9) Munshi Ram (PW. 4) sustained fracture of mid-sheft of fifth metacarpol bone at his left hand. As per Injury Report (Ex. D-12) accused Mahabood sustained one abrasion of left side of elbow of the size of 1/4cm x 1/4cm. As per Injury Report (Ex. D-13) accused Taiyab Hussain sustained following injuries:- " 1. Bruise as radish-blue 1/2cm x 1/2cm Lt. side of lower lip inner side haematoma. 2. C/o Pain Lt. leg No. ext. evidence inj. seen. As per Injury Report (Ex. D-14) accused Kallu Khan sustained following injuries:- " 1. Abrasion-scab 1,1/2cm x 1,1/2cm. Rt. side of intero parietal. Reg. of scalp. 4. Abrasion-scab 4cm x 1/2cm. Lt. shoulder joint posteriorly. " As per Injury Report (Ex. D-15) accused Rehmoo sustained following injuries:- " 1. Bruise 6cm x 2cm. Lt. side of chest transversely below clavicle Lt. side. C/o Pain in lt. arm no ext. evidence of inj. " As per Injury Report (Ex. D-16) accused Asuddin sustained following injuries:- " 1. Abrasion-scab 1,1/2cm x 1cm. Lt. side of post curicular ear. 2. Abrasion-scab 1/4cm x 1/2cm Lt. forearm Swelling 6cm x 4cm elbow joint. " As per Injury Report (Ex. D-17) accused Kamruddin sustained following injuries:- " 1. Lacerated wound-scab 4cm x 1/2cm x 1/4cm. Lt. side of frontal partial region of scalp. 2. C/o backing pain post side waist but no ext. evidence of inj. seen. 3. C/o Pain Perineum & scrotum but no ext. evidence to claim evidence of injury seen. " Learned counsel appearing for the appellants canvassed that there are several infirmities in the statements of prosecution witnesses and conviction based on such evidence is not sustainable. No satisfactory evidence is produced by prosecution to prove the possession of complainant party over the land in dispute. The observation of the learned trial court that the complainant party was in possession over the land in dispute is perverse. According to the testimony of Investigating Officer the incident had occurred over the land which came in the possession of the accused. It is also contended that ocular evidence is not corroborated by medical evidence and alleged recovery of weapons is also not trustworthy. The incident had not taken place in the manner as alleged by the witnesses. The injuries sustained by the accused were not explained. As there was free fight between both the parties, the conviction with the aid of Section 149 IPC is not sustainable.
(3.) PER contra, learned Public Prosecutor and the learned counsel appearing on behalf of the complainant urged that there is ample evidence on record to establish that all the appellants formed unlawful assembly, the common object of which was to kill Girdhari therefore, the appellants have been rightly convicted. The prosecution led the evidence of Raghuveer Singh (PW. 1), Rajendra Kumar (PW. 2), Chhote Lal (PW. 3), Munshi (PW. 4), Lallu (PW. 5), Suresh Kumar (PW. 6) and Than Singh (PW. 7) establish that accused Mauj Khan and Asuddin have blows with Danti and Tanchia on the head of Girdhari, thereafter accused Kallu hit Girdhari with tractor; when Girdhari fell down, Kallu moved the tractor and got the cultivator penetrated on the body of Girdhari. Informant Raghuveer Singh, however admitted in his cross examination that Patwari informed him that they were free to cultivate their land which situated towards east side but they were warned not to cultivate the land towards hill side. Samaydeen (PW. 17) the Investigating Officer in his cross examination deposed that there was a free fight between both the parties and the persons from both sides sustained injuries, therefore he submitted charge sheets against both the parties. He registered FIR submitted by accused Kallu and filed charge sheet. In his investigation he found that Girdhari was also accused. ;