SHARMA, J. - (1.) THE appellants, five in number, along with co-accused Mala Ram, were were put to trial before the learned Additional Sessions Judge (Fast Track) No. 2 Sikar Camp Neemka Thana, who vide judgment dated November 28,2003 convicted and sentenced the appellants as under:- Matadeen: u/s. 302 IPC: To suffer imprisonment for life and fine Rs. 1000, in default to further suffer six months rigorous imprisonment. u/s. 307/149 IPC: To suffer rigorous imprisonment for ten years and fine Rs. 1,000/- in default to further suffer six months rigorous imprisonment. u/s. 324 IPC: To suffer rigorous imprisonment for two years. u/s. 326 IPC: To suffer rigorous imprisonment for five years and fine Rs. 500/- in default to further suffer rigorous imprisonment for three months. u/s. 323 IPC: To suffer rigorous imprisonment for one year. u/s. 148 IPC: To suffer rigorous imprisonment for two years. Babu Lal: u/s. 302/149 IPC: To suffer imprisonment for life and fine Rs. 1000/-, in default to further suffer six months rigorous imprisonment. u/s. 307/149 IPC: To suffer rigorous imprisonment for ten years and fine Rs. 1000/- in default to further suffer six months rigorous imprisonment. u/s. 324 IPC: To suffer rigorous imprisonment for two years. u/s. 326/149 IPC: To suffer rigorous imprisonment for five years and fine Rs. 500/- in default to further suffer rigorous imprisonment for three months. u/s. 323 IPC: To suffer rigorous imprisonment for one year. u/s. 148 IPC: To suffer rigorous imprisonment for two years. u/s. 3/25 Arms Act: To suffer rigorous imprisonment for three years and fine Rs. 1000/- in default to further suffer rigorous imprisonment for three months. Ram Niwas, Sugana Ram and Kailash: u/s. 302/149 IPC: Each to suffer imprisonment for life and fine Rs. 1000/-, in default to further suffer six months rigorous imprisonment. u/s. 307/149 IPC: Each to suffer rigorous imprisonment for ten years and fine Rs. 1000/- in default to further suffer six months rigorous imprisonment. u/s. 324 IPC: Each to suffer rigorous imprisonment for two years. u/s. 326 IPC: Each to suffer rigorous imprisonment for five years and fine Rs. 500/- in default to further suffer rigorous imprisonment for three months. u/s. 323 IPC: To suffer rigorous imprisonment for one year. u/s. 148 IPC: To suffer rigorous imprisonment for two years. Substantive sentences were ordered to run concurrently. THEco-accused was however ordered to be acquitted.
(2.) IT is the prosecution case that on September 11, 1997 at 9. 45 AM informant Bhata Ram (PW. 1) submitted a written report (Ex. P. 1) at Police Station Neemka Thana stating therein that on the said day when he along with Mala, Khyali, Rohitash, Sheoram, Badami, Makhan, Kishna, Prabhati, Ramchandra, Bnwari, Jhabar, Jaipal, Gyarsi, Sagri, Lalchand and Rameshwar were grazing their cattle on the pasture land, Matadeen armed with sword, Ram Niwas having Pharsi, Babu Lal having gun, Sugna Pharsi and Kailash, Prakash and Mala having lathis and with 3-4 others including Om Prakash Balai armed with gun, attacked on Prabhati with an intention to kill her. Matadeen inflicted blows with sword on the head and waist of Prabhati. When Kishna tried to save her, he was attacked by Sugana and Ram Niwas with Pharsi. Babu Lal and Om Prakash opened fire that caused injuries on the person of Bhata Ram, Khyali Ram, Rameshwar, Lal Chand, Rohitash and Bidami. Matadeen inflicted sword blows on the person of Ramchandra and Makhan whereas Ram Niwas, Sugana and Kailash inflicted injuries with sword and pharsi, Kailash, Matadeen, Malaram and Prakash caused injuries to Jaipal, Jhabar, Sagri and Gyarsi. Hearing their alarm when Mala, Bhagirath, Manohar, Sheo Ram, Nara Ram etc. came to intervene the accused fled away. As a result of the injuries Prabhati died on the spot. On that report a case was registered at the police station Neemka Thana and investigation commenced. After usual investigation charge sheet was filed only against six accused persons. In due course the case came up trial before the learned Additional Sessions Judge (Fast Track) No. 2 Sikar Camp Neemka Thana. Charges under Sections 147, 148, 323, 324, 302, 302/149, 307, 307/149, 326, 326/149 IPC and Sec. 3/25 Arms Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 26 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. Two witnesses in defence were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. We have heard the learned counsel for the parties and scanned the material on record. Indisputably the death of Prabhati is homicidal in nature. As per post mortem report (Ex. P. 26) she received following injuries:- 1. Incised wound 5 cm x 2 cm x brain deep obliquely placed on Lt. parietal region with fracture of Lt. Parietal bone. Tappering end of the wound is postero inferior end. 2. Incised wound 2 x 0. 5 x 0. 2 cm obliquely placed on lateral aspect of lower 1/3 of Lt. thigh Tappering end is interolateral end of the wound. In the opinion of Dr. Pamod Kumar Garg (PW. 19) the cause of death was coma due to head injury. In the incident Gyarsi Devi, Sagri Devi, Jaipal Singh, Banwari Lal, Rohitash, Bhata Ram, Lal Chand, Badami, Jhabar Mal, Makhan Ram, Kishan, Rameshwar, Khyali Ram and Ramchandra also received injuries. At this juncture the injuries sustained by accused Ram Niwas, Matadeen, Sugana Ram, Kailash and Babulal may also be noticed. Accused appellant Ram Niwas vide injury report (Ex. D. 11) received following injuries:- 1. Bruise with abrasion 5 x 2 cm lower 1/3 of Lt. leg. 2. Bruise with abrasion 2 x 1 cm lateral aspect of Lt. knee. Accused Matadeen vide injury report (Ex. D. 12) received following injuries:- 1. Lacerated wound 2. 5 x 0. 5 x 0. 2 cm upper 1/2 of Lt. forearm with pus formation. 2. Abrasion 2 x 0. 5 cm lt. Parietal region. 3. Abrasion 0. 5 x 0. 5 cm lt. Parietal region. Accused Sugana Ram vide injury report (Ex. D. 13) received following injuries:- 1. Incised wound 12 x 3. 7 x 1. 25 cm obliquely placed on lower 1/3 of Rt. thigh antero lateral aspect 2. Incised wound 6. 5 x 2. 5 x 0. 6 cm posterior aspect of mid 1/3rd of Rt. Forearm obliquely placed. 3. Incised wound 10 x 3. 5 x 3 cm obliquely placed on upper 1/3 of postero medial aspect of Rt. forearm with fracture of ulna bone tappering end is lower end. 4.Incised wound 4 x 2x 0. 4 cm obliquely placed on posterior aspect of Rt. elbow tappering end is lower end 5. Lacerated wound 2. 5 x 2 x 0. 5 cm lt. Face near eye 6. Incised wound 2 x 0. 5 x 0. 2 cm antero lateral aspect of mid 1/3 of Rt. Thigh obliquely placed. 7. Abrasion 5 x 0. 5 cm Rt. supra clavicularane Accused Kailash vide injury report (Ex. D. 14) sustained following injuries: 1. Lacerated wound 2. 2 x 1 x 0. 4 cm lt. Little finger 2. Lacerated wound 1 x 0. 5 x 0. 4 cm with diffuse swelling lower 1/3 of lt. Forearm 3. Incised wound 1. 5 x 0. 5 x 0. 3 cm obliquely placed on lower 1/3 of lt. Arm 4. Lacerated wound 2. 5 x 0. 6 x 0. 3 cm chin 5. Lacerated wound 3 x 0. 5 x 0. 4 cm occipital parietal region crossing mid line obliquely placed. 6. lacerated wound 4 x 0. 5 x 0. 3 cm obliquely placed on Rt. parietal region. Accused Babu Lal vide injury report (Ex. D. 15) received one Incised wound 8 x 3 x 0. 6 cm Rt. shoulder with scapular region obliquely placed with pus formation. Vide injury report (Ex. D. 16) the movement of Rt. shoulder was found to be restricted. Learned counsel for the appellant canvassed that on the report of appellant Matadeen FIR No. 271/97 was registered against the complainant party. He further urged that the incident occurred all of sudden on a spur of moment and there was no bad blood between the accused and the complainant parties therefore it could not have been held that the accused formed unlawful assembly and there was common object to kill Prabhati. The Investigating Officer after investigation found that out of the accused persons named in the FIR, many persons were not present at the time of incident. Even learned trial Court gave benefit of doubt to one accused person who was put to trial before it. The place of incident was the pasture land and since the complainant party was the aggressor the appellants had right to defend their persons. The prosecution has withhold the origin and genesis of the occurrence and conviction of appellants was bad in law. Per contra learned public prosecutor supported the impugned finding of learned trial court.
(3.) COMING to the prosecution evidence we find that the informant Bhata Ram (PW. 1), Kishna (PW. 2), Rameshwar (PW. 3), Ramchandra (PW. 4), Makhan (PW. 8), Sagari (PW. 10), Bidami (PW. 11), Banwari (PW. 13) and Jhabar (PW. 16) in their cross examination admitted that the land indispute belonged to accused party. They did not explain the injuries sustained by accused appellants. The accused party placed on record the judgments of the revenue courts other documents regarding the land in dispute (Ex. D. 25, Ex. D. 30, Ex. D. 31, Ex. D. 32, Ex. D. 33, Ex. D. 36, Ex. D. 37, Ex. D. 38, Ex D. 53 and Ex. D. 54) wherein the case of complainant party has been declined and the accused party got success since they were in possession of the land in dispute and the relevant documents were also in their favour Ex. D. 25 is the sale deed in favour of the accused appellant Dhara Singh. Learned counsel for the appellants submitted that although the prosecution has come with the case that the incident occurred in pasture land, but the accused by documentary evidence proved that the land in question was in their possession. Learned counsel for the appellants submitted that on the basis of parcha bayan of Matadeen the FIR No. 271/97 (Ex. D. 18) came to be registered for the offences, under Sections 147, 148, 149, 323, 341 and 447 IPC against the complainant party and the challan was filed. Learned Additional Sessions Judge Neemka Thana in Sessions Case No. 20/91 vide judgment dated June 21, 1997 convicted and sentenced under sections 148, 149, 325, 323 and 447 IPC the members of complainant party namely Mobataram, Dallaram, Hemram, Lichhman, Ram Sahai, Ramjilal, Jagmal, Sanwalram and Malaram. Factual situation emerges from the above discussion may be deduced thus:- (i) Appellant Dhara Singh was the Khatedar tenant of land in question. The complainant party was defeated in the revenue courts since the accused party was recorded tenant and in possession of the land in dispute. (ii) Vide judgment dated December 10, 1996 Board of Revenue dismissed the revision petition preferred by complainant party holding that the accused party is recorded tenant and was in possession of the land in dispute. (iii) The incident occurred when the complainant party tried to forcibly take possession of the land in question by entering their cattle on the land in question. (iv) Deceased Prabhati received only two injuries one on the thigh and the other on her head, which was proved fatal. (v) In cross case vide judgment dated June, 21, 1997 the members of complainant party namely Mobataram, Dallaram, Hemram, Lichhman, Ram Sahai, Ramjilal, Jagmal, Sanwalram and Malaram were convicted and sentenced under Sections 148, 149, 325, 323 and 447 IPC. (vi) On July 16, 1997 the appellant Matadeen filed complaint (Ex. D. 53) to the police against the complainant party. Thereupon the SHO filed complaint under Section 107/116 (3) Cr. P. C. (Ex. D. 54) against the complainant party and the SDM Neemka Thana issued show cause notice to the complainant party to maintain peace. Their Lordships of the Supreme Court in Puran Singh vs. State of Punjab (1975 SC 1675) observed that "the right of private defence of person or property is to be exercised under the following limitations:- (i) that if there is sufficient time for recourse to the public authorities, the right is not available; (ii) that more harm than necessary should not be caused; (iii) that there must be a reasonable apprehension of death or grievous hurt to the person or damage to the property concerned. Their Lordships in para 18 of the judgment further observed thus:- "It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been subject matter of trespass and mischief he should allow the aggressor to take possession of the property which he should run to the public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extent to the causing death also, and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence in to operation." Their Lordships of the Supreme Court in Mohd. Ramzani vs. State of Delhi, AIR 1980 SC 1341 ruled that the onus to establish his plea of private defence u/s. 105 of the Evidence Act on an accused person, is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. It is further well established that a person faced with imminent peril of life and limb of himself or another is not expected to weight in "golden scales" the precise force heeded to repel the danger. Even if he at the heat of the moment carries his defence a little further then what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. ;