- (1.) APPEAL No. 144/1978 by five accused persons and Jail APPEAL No. 158/1978 by accused Ramswaroop are directed against their convictions and sentences in the following manner by an order of Sessions Judge, Bharatpur dated 7th February, 1978; Ram Swaroop - Under Section 302 I. P. C. and sentenced to imprisonment for life and a fine of Rs. 200/-; Under section 148 I. P. C. sentenced to rigorous imprisonment for \\ years; Under Section 149/324 I. P. C. sentenced to rigorous imprisonment for one year; Under Section 149/323 I. P. C. sentenced to rigorous imprison-men for two months; In default of payment of fine Ram Swaroop shall suffer further rigorous imprisonment for three months. All the substantive sentences shall run concurrently. Ram Singh - Under sections 148 and 324 IPC, - sentenced to If years' rigorous imprisonment on each count. Under section 149/326 - sentenced to 3-1/2 years' rigorous imprisonment; Under section 149/323 - sentenced to two months' rigorous imprisonment. All the substantive sentences shall run concurrently. Gazi, Haria and Gangadhar Under section 148 - sentenced to one year's rigorous imprison- - ment; Under section 149/326 IPC - sentenced to 3-1/2 years' rigorous imprisonment; Under section 149/324 IPC - sentenced to one year's rigorous imprisonment. Under section 323 - sentenced to four months' rigorous imprisonment. All the substantive sentences shall run concurrently.
(2.) BRIEFLY stated the prosecution case is that P. W. 1 Ram Hans lodged a first information report on 15th March, 1977 at 6. 30 p. m. in police station, Nagar, that on that very day at about 3. 30. p. m. his shepherds, Murli, Matoli, and Brijendra had taken their sheeps and she goats for grazing in the forest and while doing so passed through the vacant field of Girraj Gujar and then took their cattle in the field of Kishan and Kabool. At this time, Girraj came near these shepherds and hurled filthy abuses. Soon behind Girraj, Ramswaroop, Guile, Haria, Gazi, Bassey, Gunna, Roshan, Mitri, Ramsingh, Nannu, Jagga, Devi Ram and Gangadhar came armed with lathis and farsis and surrounded the above mentioned three shepherds and on account of previous enmity with an intention to kill the shepherd launched an attack on them. Ramswaroop gave a blow with lathi on the head of Murli on account of which he fell on Murli in order to save him and thereafter Ramsingh gave a blow by farsi on the head of Matoli. Gazi also gave blow by a lathi on Matoli. Brijendra Singh was beaten by Gangadhar and Haria by lathis. Other accused persons also inflicted blows by lathis. On hearing the noise Parshadi, Kishan, Banni, Ramkishore and Lila from the neighbouring fields reached on the spot, and saved the accused persons Brijendra ran inside the village and cried on which Guleh Ram, Ganga Bux and Madan also reached on the spot Murli and Matoli were taken to the hospital at Nagar. Murli died on account of the injuries. Dr. Satish Chandra P. W. 10 conducted the autopsy of the dead body of Murli on 16th March, 1977 and found the following injuries: 1. Swelling 5 cm X 5 cm. on right parietal region above the car slight hematoma. 2. Fracture of right parietal bone in two pieces 7 cm. long oblique. 3. Contusion of brain 4 cm. X 4 cm. on right parietal lobe superficial and in substances also. This area has multiple hemorrhagic patches. Cause of death was shock and lntracranial haemorrhage due to fracture of right parietal bone (skull)due to blow of blunt weapon. The police after making usual investigation filed a challan in the court of Munsif and Judicial Magistrate, Deeg, who committed the case for trial to the Sessions Court, Bharatpur. Prosecution in support of its case examined 10 witnesses and thereafter statements of accused persons were recorded under section 313 Cr. P. C. The accused persons denied the prosecution story. Accused Gunna and Gazi also stated that Murli, Matoli and Brijendra had left their sheeps and she-goats for grazing in their fields where crop was standing. On their remonstrance, Matoli and others said that they would graze their cattle in the same manner and they can do whatever they like. On this they surrounded the sheeps and she-goats for taking them to cattle-pond. On this Murli, Matoli and Brijendra ran into the village and brought a number of persons with them. These persons surrounded them in the field of Chothia and Devla. Matoli, Murli, Brijendra, Harbeer, Nandram, Ganesh, Duleh Ram, Lala Ram, Vijay, Aley Singh, Kanwar Singh, Radhey, Chotey, Ramkishore and Balla surrounded them and gave them beating to both the brothers i. e. Gunna and Gazi and took away the cattle by force. Gazi also stated that Ganeshi took away a golden ornament from his neck and the cattle caused a damage to the crop worth Rs. 300/- Rs. 400/- Gazi and Gunna also got them medically examined and also filed a complaint about this incident vide Ex. D. 4. The injuries were got examined by Dr. D. D. Gupta, D. W. 2, who gave the injuries reports Ex. D 5 and Ex D 6 in respect of Gazi and Gunna respectively. Ex D 5 is the injury report of Gazi, according to which he sustained the following injuries: 1. Lacerated wound 6 cm. x 1/2 cm. on the left necipital regional skull 9 cm away from prinnam of left ear. 2. Bruise (oblique)4 cm. x 2 cm. on the left shoulder posteriorly. Ex. D. 6 is the injury report of Gunna, according to which the following injuries were found; - 1. Bruise (reddish oblique)10 cm. x 2 1/2 cm. on the right shoulder posteriorly in the middle. 2. Lacerated wound 2 cm. x 1 1/2 cm. x 1/2 cm. on the right parietal region of skull 8/2 cm. away from right ear. 3. Bruise (reddish) (oblique)8 1/2 cm. x 2 1/2 cm. on the back of right side of chest at the level of 10th rib 2 cm. lateral to the spine. 4. Bruise (reddish) (oblique)8 cm. x i 1/2 cm. on the right forearm posteriorly 3 cm. below the elbow joint. 5. Bruise 2 cm. x 2 cm. on the left shoulder simple posteriorly in the middle. The accused persons in defence examined DW. 1 Mukmi and DW 2 Dr. D. D. Gupta. Learned Sessions Judge after hearing the arguments in the case arrived at the conclusion that the accused persons had no right of private defence. Learned Sessions Judge also held that the accused Ram Swaroop had inflicted the fatal blow on the head of Murli which was sufficient in the ordinary course of nature to cause death and the injury was inflicted intentionally and as such Ram Swaroop was guilty of an offence under Sec. 302 I. P. C. Learned Sessions Judge on the basis of evidence found that no case was proved against accused persons Girraj, Mitri, Bassey, Gunna, Roshan, Guile, Nannu, Jagga and Devi Ram and acquitted them of all the charges. He found the other accused persons namely Ram Swaroop, Ram Singh, Gazi, Haria, and Ganga Dhar also guilty under Sections 139/324, 149/323, 149/326, 148, 326, 323 IPC and awarded sentences as mentioned above. All the five accused persons aggrieved by the aforesaid convictions and sentences have filed this appeal. Mr. Dave, learned counsel for the appellants, contended that admittedly a litigation was going on between Ramhans, PW 1, who lodged the F. I, R. and the accused party consisting of Girraj, Narain and others. It is proved beyond any manner of doubt by the evidence of DW 2 Dr. D. D, Gupta that out of the accused persons Gazi and Gunna had received injuries on their heads at the hands of the complainant party and these injuries have not been explained by the prosecution. All the witnesses examined from the prosecution side, are interested and belonged to the party of Ramhans with whom litigation was going on. It is further submitted that major part of the prosecution story has not been believed by the learned Sessions Judge as 9 persons have been acquitted and this shows the falsity of the prosecution case in implicating 14 persons in a serious charge of murder. It was also argued that even according to the prosecution case the accused appellant, Ramswaroop, gave only one lathi blow and did not repeat it and this goes to prove that he had no intention to murder and gave this blow only in the exercise of right of private defence to the injuries inflicted on the head of Gazi and Gunna. Weapons, farasi and lathis, alleged to have been recovered from the accused persons, were not chemically examined and as such cannot serve as a link to connect the accused appellants with the offence charged against them. It was also argued by Mr Dave from the site inspection memo Ex. P 4 itself it is proved that crop was standing in the field which was damaged by the cattle, which were brought for grazing and in these circumstances the accused persons were justified in taking the cattle to the cattle-pond and when the complainant party inflicted injuries on the head of at least two accused persons, the accused persons were justified in the exercise of right of private defence to inflict injuries found on the body of deceased Murli and Matoli.
(3.) MR. Sharma, learned Public Prosecutor, on the other hand, argued that in the facts and circumstances of this case there was no right of private defence to person or property available to the accused persons and the learned Sessions Judge was right in convicting the accused persons. It was also argued by the learned Public Prosecutor that even if no intention of murder is held established against Ram Swaroop, it was a case at least of exceeding the right of private defence and the accused persons cannot be acquitted of all the charges levelled against them. We have given our careful consideration to the arguments advanced by the learned counsel for both the parties and have, thoroughly perused the record. A perusal of Ex. P. 1, FIR itself shows that it was lodged by Ram Hans, PW 1, according to whom, he himself and his brother Mukhram had purchased the field measuring 15 Bighas. Girraj, Narain, and other persons of their party were not permitting to sow that field and on that account a litigation was going on between the parties. It is further stated in the F. I. R. that the accused persons were having ill-will on that account. It has also been admitted that Murli, Matoli, and Brijendra were their Shepherds and had taken sheep and she-goats for grazing in the forest. It is, no doubt, mentioned in the F. I. R. that the cattle had only passed through the vacant field of Girraj and were subsequently taken for grazing in the field of Kishan and Kabool but it is admitted by even Ramhans in cross-examination that in the lower portion of the field of Girraj there was Gobla (a green shrub which grows automatically) and on the upper portion of the field there was a crop of gram. He further admitted that when he reached with the Sub-Inspector of Police on the spot, then Gobla was eaten up by the cattle. He denied that any damage was caused to the gram crop standing in the field of Girraj. He further stated that the cattle grazed gobla but the village folk treat a field to be vacant which consists of gobla. PW 2 Brijendra admitted in cross examination that there were 30-40 sheeps and she-goats. When they started from the village then first of all they entered inside the field of Girraj where Gobla was standing. There was no crop of gam standing there. He stated that no damage was caused in the field of Girraj while the cattle was taken through his field. He denied that the Police had recorded his statement. When confronted with his statement recorded by the police under section 161 Cr. P. C. Ex. Dl in which he had admitted that some crop was eaten up by the cattle in the field of Girraj. The witness denied to have given such statement to the police. Though he admitted that Girraj had come from his filed by giving filthy abuses, but he denied that Girraj and Gazi were taking the cattle to the cattle-pond. He further denied to have inflicted any injury on Gazi and Gunna. He 'however' admitted that though he did not inflict any injury on these persons but it might be possible that while saving them these persons might have received such injuries. He also admitted in the cross-examination that in the entire beating, in all two or three minutes might have been taken. PW 3 Matoli who is a child witness, has given an almost identical statement as that of PW. 2 Brijendra. He also admitted in cross-examination that there was Gobla in the field of Girraj through which the cattle had passed. He denied that there was any crop of gram in the field of Girraj. He even denied that there was no adjoining field of Girraj having the crop of gram. He even denied the eating of gobla by the cattle and stated that the cattle had only passed through the field. When confronted with portions A to B in Ex. D2 his statement recorded under Section 161 Cr. P. C. he had admitted that the cattle had eaten gobla in the field of Girraj. the witness denied to have made such statement. He further admitted that Gazi and Gunna would have taken their sheep and she-goats. Subsequently they first of all beat them and thereafter did not take away the cattle. He further stated that the accused persons would have taken their cattle to the government cattle pond and not else where. PW 4 Parasadi admitted that the cattle while passing through the vacant field of Girraj had eaten some gobla. He also supported the prosecution in other respects. He also stated in the cross-examination that in the entire beating about one or two minutes were taken. He further stated that he did not see any injuries on Gunna and Gazi. He did not know if the accused persons were taking the cattle of Murli and Matoli to the cattle-pond. PW 5 Lila has stated the same story as narrated by PW 2 Brijendra. He, however, admitted in cross examination that the accused persons had enmity with Murli, Brijendra and Matoli and his relations on account of the land of Sukhram. The entire incident might have taken at the most 1/2-2 minutes. He did not see any injuries on Gazi and Gunna. He admitted that Gazi had instituted a case against him in the court of Magistrate, Deeg in which he was an accused. PW 6 Ramkishore gave in examination-in-chief a statement supporting the prosecution-story. However, in cross-examination he admitted that Gazi had instituted a case against him in the court of Magistrate, Deeg, for this very incident. He denied that Girraj had collected Gobla in his field. He did not know whether Girraj had sown any crop of gram in his field or not. Though, he states to be a cultivator of the neighbouring field of Girraj, but he denies to have gone to the field of Girraj. He denies to have any knowledge about any injuries inflicted on Gazi and Gunna. He denies to have any knowledge if Murli and others would have left their cattle in the field of Girraj having gobla and if they would have cause any damage to the crop of gram. PW 7 Madan states that Mukhram father of Murli and Matoli had purchased a field from Sukhram and this caused annoyance to Narain Patel, Girraj, Roshan, Mitri, Ramsingh, Gulley and others and they had instituted a case on this account. Brijendra had come in the village and cried that Matoli and Murli have been killed. Thereafter the witness reached the spot and found Murli dead and Matoli injured. In the cross examination, he admitted that as Mukhram, had purchased the land from Sukhram there arose a party faction in the village. PW 8 Baloo a witness produced by the prosecution for the recovery of weapons from Ramsingh did not support the prosecution case and was declared hostile. PW 9 Om Prakash is the investigating officer. PW 10 is Dr. Satish Chandra Vyas, the Medical Officer in-charge of Dispensary Nagar and has proved the injuries of Matoli and the injuries and post-mortem report of deceased Murli. ;