MOHAMMAD RAFIQ J. - (1.) ABOVE criminal appeal has been preferred by convict accused -appellant Yashpali @ Jaspali against judgment dated 28.08.2003 of learned Additional Sessions Judge No.1 (Fast Track), Dholpur, in Sessions Case No.69/2002, whereby he has been convicted for offence under Section 302 IPC and sentenced to undergo life imprisonment with fine of Rs.500/ -, in default of payment of fine, he was ordered to additionally undergo rigorous imprisonment for one month. Above mentioned revision petition has been preferred by the accused -party in the above appeal challenging acquittal of the members of the complainant party of the charge of murdering two of their members.
(2.) AS per the prosecution case, the police recorded 'parcha bayan' of one Jaswant Singh (PW -13) at General Hospital, Dholpur, in connection with the incident that took place on 27.08.1999 at 7.00 am. It was stated by him that there was a dispute between him on the one hand and Bhimsen and others on the other hand, with regard to partition of certain agriculture land. Bhimsen and Yashpali had cultivated that agriculture land despite complainant party asking them not to do so. The village Panchas tried to mediate between both the parties. The dispute was about the land of one Shripat measuring 5 bighas and 7 biswas. Both, the accused -party and the complainant party had purchased half share each of that land and both wanted to cultivate that half portion of the land, which was adjacent to the tube -well. It was in that connection that the incident took place. It was stated that the Panchas - Prem Singh, Om Prakash, Nathi, Dayaram, Ram Shanker, Ramujiya, Purushottam, Ramphool, Sahib Singh and Jagdish tried to get the dispute settled but they failed to persuade the parties to arrive at an amicable settlement. Then Bhimsen, Gangola, Yashpali etc. ploughed the field forcibly. Bhimsen, Tulsi, Gangola, Yashpali, Dauji, Veero, his brothers and Preetam Singh, Ram Prasad, Vasudeo and Padam Singh, brothers of Dauji, of the accused -party were present. Yashpali opened fire from 'katta', which hit Ramdeen. When complainant Jaswant Singh tried to save him, Padam inflicted a 'kulhari' blow on him, due to which he became unconscious and fell down. He regained consciousness only in Hospital. His younger brothers Vijendra Singh and Ram Laxman also sustained injuries. Ramdeen died on account of firearm injury.
(3.) THE police on the basis of aforesaid 'parcha bayan' registered F.I.R. No.190/99 for offence under Sections 147, 148, 149, 323, 307, 302 of the Indian Penal Code, and commenced investigation. The police filed challan against seven accused persons, namely, Brahmchari, Daudayal, Vasudeo, Birbal @ Veero, Ramrath @ Rama, Harimohan and present appellant Yashpali (hereinafter shall be referred to as 'the first party') for offence under Sections 147, 148, 149, 323, 326, 307 and 302 IPC. Accused Yashpali was also charged for offence under Section 3/25 of the Arms Act. Learned trial court framed charges against accused Yashpali for offence under Sections 148, 302, 307/149, 323/149 IPC and Section 3/25 of the Arms Act, and against other accused persons for offence under Sections 147, 302/149, 307 and 323 IPC. They denied the charges and claimed to be tried. The prosecution examined 17 witnesses and got 47 documents exhibited. The defence did not produce any witness, however, got 12 documents exhibited. On conclusion of the trial, learned trial court, vide judgment dated 28.08.2003 in Sessions Case No.69/2002, acquitted Brahmchari, Daudayal, Vasudeo, Birbal @ Veero, Ramrath @ Rama and Harimohan of all the charges. Learned trial court, however, while acquitting accused Yashpali for offence under Sections 148, 307/149, 323/149 IPC and Section 3/25 of the Arms Act, convicted him for offence under Section 302 IPC and sentenced to undergo life imprisonment with fine of Rs.500/ -. In default of payment of fine, he was required to further undergo rigorous imprisonment for one month. Hence, the Criminal Appeal on behalf of accused Yashpali. It is significant to note that in the same incident, two persons of the first party, namely, Tulsi and Bhimsen, also died and some other received injuries and on the basis of 'parcha bayan' of Brahmchari, the police registered F.I.R. No.191/1999 for offence under Sections 147, 148, 149, 33, 307 and 302 IPC, and commenced investigation. After completion of investigation, the police filed challan. Charges were framed against accused -persons, namely, Jaswant, Ramlakhan, Kalicharan, Bijendra and Biharilal, (hereinafter shall be referred to as 'the second party') for offence under Sections 148, 302, 302/149, 323 and 323/149 IPC. The accused denied the charges and claimed to be tried. Accused Bijendra Singh went absconding and standing warrant was issued against him. The prosecution examined 20 witnesses and got certain documents exhibited. The accused examined Indrajeet Sharma as DW -1, in defence. On conclusion of trial, learned Additional Sessions Judge No.1, (Fast Track) Dholpur, vide judgment dated 28.08.2003 in Sessions Case No.70/2002, acquitted accused Jaswant, Ramlakhan, Kalicharan and Biharilal on the premise that they acted in exercise of right of private defence. Hence, the revision petition on behalf of Brahmchari of the accused -party. Brahmchari, Daudayal, Vasudeo, Birbal @ Veero, Ramrath @ Rama, Harimohan, and present accused -appellant Yashpali shall be herein referred to as 'the first party'. Jaswant, Ramlakhan, Kalicharan, Bijendra Singh and Biharilal shall be herein referred to as 'the second party'. The criminal appeal and the revision petition both have been preferred on behalf of the first party. Criminal appeal is against conviction and sentence of Yashpali, and revision petition is against acquittal of four members of second party.;