R.S. Chauhan, J. - (1.) AGGRIEVED by the judgment dated 11.11.1999, passed by Addl. Sessions Judge No. 1, Sikar, the accused -appellants, namely Mansaram, Sukhdevram, Rameshwar and Mahendra have challenged their conviction under Sections 302/149, 323/149, 149 and 448 IPC. Meanwhile, aggrieved by the same judgment, the State of Rajasthan has challenged the acquittal of Mamraj, Phool Singh @ Phoolaram, Mangilal, Tarachand and Murlidhar for offences under Sections 147, 148, 448, 302/149 and 323/149 IPC. While Mansaram and others have filed D.B. Criminal Appeal No. 714/1999, the State of Rajasthan has filed D.B. Criminal Appeal No. 377/2000 before this court. Since both these appeals arise from the same impugned judgment, they are being decided by this common judgment.
(2.) BRIEFLY the facts of the case are that on 19.7.1989, Harlal Singh (P.W.5) lodged a written report (Ex. P.12) with the S.H.O., Police Station, Laxmangarh, Distt. Sikar. When translated into English, the said written report (Ex. P.12) reads as under: "To,The SHO,Police Station Laxmangarh,Distt. Sikar Sir, To,The SHO,Police Station Laxmangarh, Distt. Sikar It is humbly submitted that yesterday, on 18.7.1989, around midnight my brother Laduram S/o. Baksaram, and his two sons, Surendra and Prakash were sleeping in the courtyard. My brother Laduram's brother -in -law, Chandraram, and Ramlal S/o. Juwara, by caste Jat, resident of Madhopura were also sleeping with us. Laduram's elder son, Brijendra, and his younger son, Mohan,\were sleeping at a separate house constructed by Brijendra on the western side of the well. Suddenly, about 20 -25 persons came, cursed and dragged out Brijendra and Mohan from the homes. They started assaulting them with barchhi (small axe), bhala (spear), lathies (wooden sticks), and swords. Brijendra's wife raised an alarm. Then, I, my brother Laduram, my nephews Surendra, Prakash and Chandraram, and Ramlal rushed to their rescue. We carried lathis with us. The moment we reached there, Surjaram S/o. Hukumaram, by caste Jat, resident of Rehnawa, and his son, Arvind @ Nemichand said 'now the true enemy, Laduram has come'. Saying this, both of them attacked him with farsies which they were carrying. With this, Birju S/o. Khumaram, by caste Jat, resident of Khevasar, Ramnarayan S/o. Rambux started attacking him. Laduram was killed at the spot; Mohan, Brijendra, Prakash, Surendra sons of Laduram, and Chandraram were badly injured. Thinking that they had expired, the accused ran away. Brijendra and Surendra in order to protect themselves, inflicted lathi blows on Arvind and Ramnarayan. Arvind and Ramnarayan's companions also said, while leaving, that they had killed Tara Singh Jat of Roru, so then who are we? Those whom I have named, I know them. Others I don't know them, but I can recognise them if they were brought before me. This gang of persons had come in two jeeps; they boarded the two jeeps and went towards Navalgarh. One jeep belonged to Surjaram S/o. Hukumaram, by caste Jat, r/o Rehnawa, whose registration numbers are RJB -7669. I do not know the number of the other jeep. I am submitting the report to you and pray that legal action should be taken against the culprits as soon as possible. sd/ - Harlal Singh S/o. Baksaram Jat Village Post, Rehnawa, Tehsil and Police Station, Laxmangarh." After a thorough investigation, initially the police submitted charge -sheet against co -accused persons, namely Arvind Kumar, Harlal Singh, Ramnarayan, Birbal, Brij Mohan, Surjaram and Phool. But it kept the investigation pending against the present accused -appellants, and the accused -respondents. Subsequently, a charge -sheet was filed against ten persons. The case was committed to the Court of Sessions, wherefrom it was transferred to the learned Judge. By the order dated 14.7.1998 the learned Judge framed charges against the appellants for offences under Sections 147, 148, 444, 448, 302/149, 323 read with 149 IPC. In order to substantiate its case, the prosecution examined twenty witnesses, and submitted fifty -nine documents. In turn, the defence examined four witnesses, and submitted twenty -six documents. After concluding the trial, the learned Judge convicted and acquitted the accused persons as mentioned above. Hence, both these appeals by the accused -appellants, and by the State of Rajasthan.
(3.) BEFORE dealing with the contentions of the learned counsel for the parties, it would be apposite to briefly deal with the prosecution evidence.;