BALI, J. - (1.) THIS appeal has been filed by Bhorya and his four sons namely Harkesh, Ghisya, Ramji Lal and Moti recorded against them, by the Additional Sessions Judge, Dausa. Whereas Ghisya has been found guilty under section 302 IPC substantively and sentenced to undergo rigorous imprisonment for life, others named above have been held guilty for the offence u/s. 302 with the aid of Sec. 149 IPC and convicted likewise. They have been also ordered to pay a fine of Rs. 2,000/-, on in default of the same, to further undergo rigorous imprisonment for a period of there months. They have also been convicted under various other sections of the IPC, as detailed below. Bhorya U/s. 148 IPC - 3 months' rigorous imprisonment. U/s. 452 IPC - 6 months rigorous imprisonment with a fine of Rs. 200/- and default in payment of fine to undergo 15 days simple imprisonment. U/s. 325/149 IPC - One year RI and a fine of Rs. 200/- and in default of payment of fine to further undergo 15 days S. I. U/s. 324 IPC - 6 months' simple imprisonment with a fine of Rs. 200/- and in default of payment of fine SI for 15 days. U/s. 323 IPC - Three months' R. I. Harkesh and Ramjilal U/s. 147 IPC - 3 months' R. I. U/s. 452 IPC - 6 months' RI and a fine of Rs. 200/-, in default of payment of fine, SI for 15 days. U/s. 325/149 IPC - One year R. I. and a fine of Rs. 200/-, in default of payment of fine, 15 days' SI. U/s. 324/149 IPC - 6 months SI with a fine of Rs. 200/-, in default of payment of fine, further SI for 15 days. U/s. 323 IPC - 3 months' R. I. Ghisa U/s. 147 IPC - 3 month' Ri U/s. 452 IPC - 6 months' RI and a fine of Rs. 200/-, in default of payment of fine, further SI for 15 days. U/s. 325/149 IPC - 1 year RI and a fine of rs. 200/-, in default of payment of fine, further SI for 15 days. U/s. 324/149 IPC - 6 months' SI and a fine of Rs. 200/-, in default of payment of fine, further RI for 15 days. U/s. 323 IPC - 3 months RI. Moti Lal U/s. 147 IPC -3 months' Ri U/s. 452 IPC - 6 months' RI and a fine of Rs. 200/-, in default of payment of fine, 15 days' SI. U/s. 325 IPC - 1 year RI and a fine of Rs. 200/- in default of payment of fine, 15 days SI. U/s. 324/149 IPC - 6 months' SI and a fine of Rs. 200/ -. , in default of payment of fine, further SI for 15 days. U/s. 323 IPC - 3 months' RI.
(2.) IN the occurrence that is stated to have taken place on 16. 9. 1993 at 7-8 a. m. IN Village Ramsar, whereas Kishnya lost his life, Smt. Rumali (PW-3), Ghanshyam (PW-4), Kalu (PW-6) and Chotya received various injuries. FIR with regard to the incident came to be lodged on the same day at 1. 40 p. m. at Police Station Lalsot on the basis of the written report (Ex. P. 1) which was lodged by PW-1 Bacchu son of Kanhaiya. Special report with regard to the incident reached the concerned Magistrate on 21. 9. 1993. Chain of events leading to one death and injuries to four as given out by Bacchu (PW-1) who lodged the FIR, when translated into English, reads thus - " There is dispute with regard to the partition of land between us and Bhorya son of Moolchand Mali regarding which a case is going on in the court. Because of this enmity, today on 16. 9. 1993 at about 7-8 a. m. I and my family members Kishnya, Ghanshyam, Kalu and Chhotya were sitting at the house. Wife of my nephew (brother's son) Smt. Rumali was cooking food. In the meanwhile, Bhorya son of Mool Chand and his sons Ghisya,ramjilal, Harkesh, Motilal Mali came armed with lathis and spades with common object the beat us. They came at our house, entered the same and Bhorya told that you are troubling us for a long time and your work shall be done. Mr. brother Kishnya told him that the case was between you and Champalal whereupon Bhorya said that boys what are you looking for, kills him. The moment he said so, Ghisya, Harkesh and Ramjilal started giving lathi blows on the head of my brother and other parts of the body. I, Kalu Ram, Rumali, Ghanshyam and Chotiya tried to save our brother. All these persons started beating us with lathis and spades. Moti gave a lathi blow to me on the head, Bhorya gave a blow with spade from the reverse said on my left shoulder. Ramjilal gave a lathi blow on my right shoulder. When we cried, on hearing the same Bacchi son of Ramphool Mali, Kali son of Ramphool Mali came and rescued us. Due to beating given to us, I, Ghanshyam, Chhotya, Kalu, Rumali and his brother Kishnya received number of injuries. My brother Kishnya became unconscious on the spot due to injuries received by him. We took him to the hospital. Legal proceedings be carried against the accused. " Kishnya as per the evidence brought on record died on 17. 9. 1993. In its endeavour to bring home the offences against the appellants, the prosecution examined Bacchu son of Kanhaiya, the first information, who also happened to be injured, as PW-1. He supported the prosecution version. In the cross examination, he stated that he had seen the site plan (Ex. P. 4) and the fight had taken place at point `x' in the said site plan. The fight had taken place in front of the house. He also stated that if the accused were to go from their fields to their house, then passage shown "e" in the site plan would fall on their way. He also stated that they had not given any beating to Bhonriya, Ghisya, Ramjilal, Harkesh and Moti nor these persons received any injuries. Bacchu son of Ramphool who along with his father Ramphool and Kalu and tried to rescued the complaint party was examined as PW-2. He too supported the prosecution case. He, however, stated that the accused had also received injuries by lathi and spade. He further stated that the fight had taken place 2-4 steps ahead in front of the house. He also stated that the house of Bacchu is in the fields itself. Unlike PW-1, he however denied that the passage marked `e' will fall on the way if the appellants were to go from the fields to their house. He, however, in the later part of his cross examination stated that from the side of point `e' the appellants could go to their fields. He also stated that the occurrence and taken place at point `x' in the site plan (Ex. P. 4) and that lathi and Spades were wielded from both the sides. But immediately thereafter, he stated that it was not correct. Actually, the appellants alone were beating the complaint party and that the complaint party was not causing injuries to the appellants. He denied for want of knowledge as to how the appellants received injuries. He stated that he had not seen any injuries on the person of the appellants. He stated that he had not made any statement to the police that the accused has also received injuries and that the complaint party was defending itself. He was however, confronted with such statement made by him before the police. He denied if the appellant were going to their fields with spades in the hand. He denied for want of knowledge if the appellants were going to their fields with spades in their hand to make `doli' (boundary) in their fields and that the complaint party attacked them and caused them injuries. Smt. Rumali the other injured eye witness examined as PW-3, supported the prosecution version. She further stated that when she was cooking food, them Ghisya and Moti and dragged her father in law Kishnya who too was cooking food in the kitchen. In the cross-examination, she was confronted with the statement made before the police where dragging of the father-in- law from the kitchen was not mentioned. She stated that no accused were given any injury from our side nor she had seen any injury on the person of the accused. Ghanshyam, the other injured eye witness who was examined as PW-4, also supported the prosecution version. In cross-examination, he however stated that when he came running, he found Kishnya lying unconscious. After him, Kalu and Bacchu had also come. There was no dispute between them and the accused with regard to the partition of land, further stated this witness. He categorically stated that the occurrence had taken place where they were residing. Kalu, another injured eye witness who was examined as PW-6 also supported the prosecution case. In his cross-examination, he admitted that Bhonriya's son Ghisya and Champalal and lodged a report against his father Kishnya with regard to the theft of a nozzle. He also stated that the appellants had come to their house from the passage and further that if one is to go to the fields of the accused the passage would not be from the side of their house. He denied the suggestion that they had given beatings to the appellants. Prosecution also examined Dr. Dharmendra Kumar (PW-7) who stated that he had examined Kishnya son of Ram Swaroop on 16. 9. 1993 at 7. 10 p. m. and found three injuries on his person. With regard to all the injuries, he had advised X-ray. All the injuries were given by blunt weapon within duration of 12 hours. He proved medico legal report Ex. P. 6. The injured was unconscious at that time. Dr. Hari Prasad, who was examined as PW-8, deposed that on 29. 9. 1993 at about 11. 30 a. m. he had medico legally examined Kaluram son of Kishnya and found the following injuries on his person: " 1. Bruise 3 cm x 2 cm on right thumb. 2. Soft swelling 6 cm x 3 cm on the right parieto temporal region of skull. 3. Abrasion (scabbed) 2 cm x 1 cm on the outer aspect of left forearm.
(3.) HE opined that all the injuries found on the person of kalu were simple in nature and were caused within duration of 12-15 days. On 16. 9. 93 at 4. 40 p. m. he had medico legally examined Chotya and found following one injury on his person: " Bruise 18 cm x 3 cm on the right back. " The injury in the opinion of the doctor was simple in nature and was caused by blunt weapon within a person of 24 hours. He proved medico legal report Ex. P. 8. ;