SHARMA, J. - (1.) THE appellants, four in number, along with six co-accused were put to trial before the learned Additional Sessions Judge (Fast Track) Hindaun City District Karauli, who vide judgment dated February 19, 2004 convicted and sentenced the appellants as under:- Suraj Mal: u/s. 302 IPC: To suffer imprisonment for life and fine Rs. 1000, in default to further suffer three months rigorous imprisonment. u/s. 148 IPC: To suffer rigorous imprisonment for one year. u/s. 323/149 IPC: To suffer simple imprisonment for six months. u/s. 447 IPC: To suffer simple imprisonment for one month. Kamal: u/s. 302/34 IPC: To suffer imprisonment for life and fine Rs. 1000, in default to further suffer three months rigorous imprisonment. u/s. 148 IPC: To suffer rigorous imprisonment for one year. u/s. 324 IPC: To suffer simple imprisonment for two years. u/s. 323/149 To suffer simple imprisonment for six months. u/s. 447 IPC: To suffer simple imprisonment for one month. Ram Swaroop and u/s. 325 IPC: To suffer simple imprisonment for three years and fine Rs. 500, in default to further suffer one month simple imprisonment. u/s. 148 IPC: To suffer rigorous imprisonment for one year. u/s. 323/149 To suffer simple imprisonment for six months. u/s. 447 IPC: To suffer simple imprisonment for one month. Shimbhu: u/s. 324 IPC: To suffer simple imprisonment for two years and fine Rs. 500, in default to further suffer one month simple imprisonment. u/s. 148 IPC: To suffer rigorous imprisonment for one year. u/s. 323/149 To suffer simple imprisonment for six months. u/s. 447 IPC: To suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently. THE co- accused however ordered to be acquitted.
(2.) IT is the prosecution case that on August 12, 1999 at 10. 45 AM informant Kailash (PW. 5) submitted a written report (Ex. P. 7) at Police Station Garhmora stating therein that on the said day at 8 AM when he was sitting at home 24 accused persons (named in the report) armed with lathi, Karwari, Pharsa and Dharia came to the house, abused the informant and his family members and exhorted to kill them. Suraj Mal inflicted blow with Karwari on the head and other parts of the body of Laxman (since deceased ). Kamla gave blow with Gandasi on the person of Nathu. The informant and other persons also sustained injuries. Hearing their alarm Lohadya, Mohar Singh, Ram Swaroop and Kailash intervened and saved them. On the aforesaid report a case under Sections 147, 148, 149, 323, 324, 326, 307 and 447 IPC was registered and investigation commenced. Nathu, Kailash and Laxman were removed to hospital. Laxman however died on the way to hospital. After usual investigation charge sheet was filed only against ten accused persons out of 24 named in the FIR. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Hindaun City District Karauli. Charges under sections 148, 302, 302/149, 326/149, 325/149, 324/149, 323/149 and 447 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 23 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. No witness in defence was however 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 Laxman is homicidal in nature. As per post mortem report (Ex. P. 6) he received following injuries:- 1. Oblique incised wound 5 cm x 2 cm x skin & muscle and bone deep on left occipital part of skull with clean cut margin with fracture of left occipital bone with bleeding. 2. Oblique lacerated wound 8 cm x 4 cm x skin & muscle and bone deep on left parietal & temporal part of skull with bleeding with fracture of left parietal & temporal part of skull communicated type of fracture of both bones. 3. Oblique lacerated wound 6 cm x 4 cm x skin deep on right parietal part of skull with bleeding. 4. Red contusion 10 cm x 4 cm on left back of chest. 5. Red contusion 2 cm x 2 cm on right back of chest. 6. Oblique lacerated wound 2 cm x 1/2 cm x skin deep on left eye lid with contusion 2 cm x 2 cm on left upper part of face. In the opinion of Dr. N. L. Sharma (PW. 2) the cause of death was internal brain haemorrhage and coma due to severe head injuries No. 1 & 2. Learned counsel for the appellant canvassed that the incident occurred all of sudden on a spur of moment and there was not 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 Laxman. The Investigating Officer after investigation found that out of 24 accused persons named in the FIR, 14 were not present at the time of incident. Even learned trial Court gave benefit of doubt to six accused persons put to trial before it. The place of incident was the forest land and the complainant party was the aggressor. The prosecution has withheld 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. Having considered the submissions and record we find that according to Raghuveer (PW. 4) the land where Laxman was erecting `bada' was the forest land. The accused party wanted to graze its cattle on the said land whereas the complainant party obstructed the cattle and both the parties fought freely. Nathu (PW. 1), brother of deceased, deposed that while his daughter was grazing she-buffaloes in the Bada, the accused dragged she-buffaloes out of Bada. When his girl informed him about the act of the accused, he went to the accused to pursuade them not to drag she buffaloes again. The deceased and Kailash followed him. When they were making attempt to pursuade the accused, they were attacked. Gurji Mal Meena, IO (PW. 23) in his cross examination deposed that he did not investigate as to whether the land where incident did occur belonged to forest department or the complainant party. He also did not investigate as to whether the possession of the complainant party over the said land was valid or not. On the basis of oral statements of the members of complainant party he found the case under Section 447 IPC established against the accused. He did not make attempt to examine the land record. He however admitted that the incident occur all of a sudden on account of dispute regarding grazing of cattle (ml fnu kxmk vpkud eos'kh dh ckr dks ysdj gqvk Fkka)
(3.) FACT situation emerges from the material on record is as under:- (i) As per written report (Ex. P. 7) the incident occurred at the house of informant, whereas according to site plan (Ex. P. 8) the place of incident was Bada shown by mark `a'. (ii) According to Raghuveer (PW. 4) the land where incident occurred belonged to the forest department. (iii) Nathu (PW. 1) the star witness of the prosecution stated that on being informed by his girl that the accused party had dragged their cattle out of the Bada, they went to the accused party for the purpose of reconciliation. (iv) Gurji Lal Meena (PW. 2) did not investigate the case properly. He did not make attempt to examine the relevant revenue record. According to him the incident occurred all of sudden on account of dispute regarding grazing of cattle. (v) There was no previous enmity between the parties. (vi) According to FIR as many as 24 persons were the assailants out of those only 10 were charges sheeted and only four were convicted and sentenced. On a careful scrutiny of prosecution evidence we are of the opinion that the prosecution has withheld the origin and genesis of the occurrence. According to FIR the place of occurrence was the house of the complainant party but at the trial the incident was shown to have been occurred on the forest land and it was the complainant party along with deceased, had gone to the accused who were grazing their cattle on the forest land when the complainant party claimed the forest land as of its own and asked the accused to take their cattle out of the land the incident occurred. The beating was neither premeditated nor calculated. The incident was the result of sudden quarrel. On examining the evidence from the point of view of trustworthiness, we find it consistent only against appellants Suraj Mal and Kamal. Since the incident happened when the accused were confronted with a situation where the members of complainant party including the deceased were found committing trespass over the forest land. However from the nature of injuries inflicted, the accused should be presumed to know that their act of inflicting injuries was likely to cause death of victim, even though they had no intention of causing death or such bodily injury as is likely to cause death, therefore the appellants Suraj Mal and Kamal are guilty of the offence punishable under Part II of Section 304 IPC. For these reasons, we dispose of the instant appeals in the following terms:- (i) We allow the appeal of appellants Ram Swaroop and Shimbhu and acquit them of the charges under Sections 325, 148, 323/149, 447 and 324 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (ii) We partly allow the appeals of appellants Suraj Mal and Kamal and instead of section 302 we convict each of them under Section 304 Part II IPC. We however acquit them of the charges under Sections 148, 323/149, 324 and 447 IPC. Since the appellants Suraj Mal and Kamal have remained in confinement for a period of more than six years and seven months, the ends of justice would be met in sentencing them to the period already undergone by them in confinement. The appellants Suraj Mal and Kamal, who are in jail, shall be set at liberty forthwith, if not required to be detained in confinement, in any other case. (iii) The impugned judgment of learned trial Judge stands modified as indicated above. . ;