Mohammad Rafiq, J. - (1.) THIS appeal has been preferred by accused -appellants Mangtu Ram and Chandan Singh. While accused -appellant Mangtu Ram has been convicted for offence u/s.302 read with Section 34 IPC, accused -appellant Chandan Singh has been convicted for offence u/s.302 IPC simplicitor. For such conviction, they have been sentenced to life imprisonment and fine of Rs. 100 each, in default whereof, they were to further undergo simple imprisonment of three months.
(2.) THE facts of the case are that a written report was submitted on 14.03.2004 by complainant Veer Singh Banjara to SHO, Police Station Ghad, District Tonk alleging that at about 5.15 pm on that day, Ganpat, younger son of his uncle Bansi was constructing house on his land. Suddenly, Chandan, Mangtu Ram, Chainu, Sethani, Maya, Rumali, all Banjara by caste and residents of Maharaj Kanwarpura came there armed with lathis and axes. They restrained his cousin from constructing house and started abusing him and thereafter subjected him to beating by lathis and axes, as a result of which Ganpat sustained injuries and became unconscious and Nawal also sustained injuries. Police on receipt of the aforesaid written report initially registered the FIR for offence u/s.307, 323, 448, 147, 148 & 149 IPC and commenced investigation. Nine days after the incident and in the course of investigation, injured Ganpat succumbed to injuries, therefore, offence u/s.302 IPC was added. Finally, the police filed charge sheet against three accused namely; accused -appellants Mangtu Ram, Chandan Singh and Chaina Singh @ Chain Singh for offence u/s.302/34, 341 and 323 IPC. Charge against them was framed for the aforesaid offences, which they denied and claimed trial. Prosecution produced 17 witnesses and exhibited 26 documents. Defence produced 5 witnesses and exhibited 12 documents. The trial court on conclusion of the trial while acquitting Chaina Ram @ Chain Singh of the charges, convicted accused -appellants in the manner as indicated above. Hence this appeal. Shri N.A. Naqvi, learned senior counsel for the accused -appellants has argued that the statement of prosecution witnesses are full of infirmities and contradictions. He has argued that the learned trial court has failed to appreciate that land in dispute over which the complainant party wanted to forcibly construct the house, in fact, was owned by the accused appellants. It was not only in their possession, but its patta (Ex.D12) was issued in favour of their father Parsuram as far back on 29.5.1994. It is therefore that the police by conscious decision did not either register any criminal case against the accused -appellants or file any charge sheet against them for offence u/s.447 or 452 of IPC. The complainant party claimed that such land was in their possession, whereas the fact was that the complainant party had left the village 25 years ago and went elsewhere to earn their livelihood. They raised the dispute when they returned back. This is proved from the statement of Karan Singh (PW5), Jagdish (PW6), Ram Niwas (PW9) and also Guddi (PW10), wife of the deceased that when complainant party wanted to forcibly take possession of the aforesaid land, a dispute arose between the parties and the meeting of the Panchayat was convened by the elders of the village, who mediated to settle the dispute in the terms that the accused shall give another piece of land to the complainant party to settle down in the village, but before that could happen, the complainant party took the law in their hands and tried to forcibly take possession of the disputed land and raise construction on the disputed land.
(3.) SHRI N.A. Naqvi, learned senior counsel for the accused -appellants argued that the prosecution cited Veer Singh (PW1), Naval (PW4), Karan Singh (PW5), Jagdish (PW6), Umeer Singh (PW7), Som Singh (PW8), Ram Niwas (PW9) and Guddi (PW10) as eye witnesses. While Jagdish (PW6), Som Singh (PW8) and Ram Niwas (PW9) have turned hostile, the statements of remaining five witnesses are also consistent as to the role assigned to the accused -appellants. All of them have consistently stated that when complainant party was trying to raise construction over the land of the accused -appellants and accused -appellants pose resistance then the dispute took place. It is stated by all the witnesses that Mangtu inflicted 'lathi' blow on the back of Ganpat and thereafter Chandan inflicted 'kulhari' blow on the head of Ganpat, as a result of which he fell down and then they dragged him to the 'chowk' in front of house of Parsuram and again subjected him to beating. They have somewhat exaggerated the version by stating that Chain Singh inflicted 'kulhari' blow from the sharp side at the back side of the head of the deceased Ganpat and Chandan Singh also inflicted a 'kulhari' blow on the back side of the head of the deceased. Sethani inflicted 'lathi' blow at the back of Ganpat, Maya inflicted a 'lathi' blow at his shoulder and Rumali delivered 'lakri' blow on the hip of the deceased. These witnesses have named Pokhar, Radhey Shyam, Mahaveer, Babulal and other persons of the village who intervened, but independent witnesses have not been produced. Even the trial court has disbelieved these witnesses substantially in so far they sought to falsely implicate more number of accused. But, none of the witnesses have stated that disputed land was ever in possession of the complainant. All that has been state by aforesaid four witnesses is that when the complainant came back to the village after 25 years and wanted to again take possession of the land, it was resisted by the accused party and a compromise arrived at and it was agreed that they would be given another piece of land in lieu of the disputed land, thereby it is shown that it is the complainant party, who took the law into their hands and that in the scuffle that took place not only deceased sustained injuries, but two accused -appellants Mangtu Ram and Chaina Ram @ Chain Singh also sustained injuries. It is proved by injury report of Mangtu (Ex.D11) that he received seven injuries including one on the right side of midline on occipital region and accused Chaina Ram @ Chain Singh also sustained five injuries including one on scalp as per his injury report Ex.D10.;