S. K. SHARMA, J. - (1.) IN an unfortunate incident four persons viz. , Kheta, Jai Narain, Ganpat and Ramchandra lost their life. The dispute arose while Patthar Gadi (marking of boundary by fixing stones) on the field was in progress. Out of 63 accused persons named in the First INformation Report, only 42 were charge-sheeted. Since accused Ram Swaroop and Rajveer were declared absconders, they were tried separately. Accused Ram Niwas @ Ram Kumar died during trial and proceedings against him stood dropped. Thus 40 appellants who have been convicted and sentenced vide judgment dated August 27, 2001 by the Additional Sessions Judge Kotputli District Jaipur are before us in these appeals. The details of appellants and punishment recorded against them are as under:- Twenty four appellants in Criminal Appeal No. 647/2001 viz. , 1. Gyarsa, 2. Laxman, 3. Rajbir @ Dholya, 4. Onkar S/o Gyarsa. 5. Sheoram, 6. Dharampal, 7. Ramdayal, 8. Badri, 9. Hazari, 10. Sawai Singh, 11. Gulzari, 12. Bhoma, 13. Devi Sahai, 14. Dayaram, 15. Ashok, 16. Sheokaran, 17. Leelaram, 18. Moolchand, 19. Shriram, 20 Rampratap, 21. Prabhu, 22. Malaram, 23. Umrao, 24. Mahada and three appellants in criminal appeal No. 685/2001 viz. , 1. Ram Niwas, 2. Ramavtar and 3. Onkar s/o Kalu have been convicted and sentenced thus:- U/s. 302/149 IPC: Each to suffer imprisonment for life and fine of Rs. 500/-, with default stipulation. U/s. 307/149 IPC: Each to suffer rigorous imprisonment for ten years and fine of Rs. 500/-, with default stipulation. U/s. 325/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 200/-, with default stipulation. U/s. 148 IPC: Each to suffer rigorous imprisonment for three years. U/s. 323/149 IPC: Each to suffer rigorous imprisonment for one year. U/s. 447 IPC: Each to suffer rigorous imprisonment for three. . . . . ?. The substantive sentences were ordered to run concurrently. Twelve appellants in Criminal Appeal No. 647/2001 viz. , 1. Girdhari, 2. Tarachand, 3. Jaidayal, 4. Matadin, 5. Netram, 6. Prithvi @ Pipaya, 7. Mahendra, 8. Deshraj, 9. Prakash, 10. Heera Lal, 11. Bhebharam and 12. Hariram and appellant Sawant in Appeal No. 685/2001 were however not found guilty under sections 302/149 and 307/149 and have been convicted and sentenced as under:- U/s. 325/149 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs. 200/-, with default stipulation. U/s. 148 IPC: Each to suffer rigorous imprisonment for three years. U/s. 323/149 IPC: Each to suffer rigorous imprisonment for one year. U/s. 447 IPC: Each to suffer rigorous imprisonment for three. The substantive sentences were ordered to run concurrently. It may be noticed that finding of learned trial Judge acquitting these appellants under Sections 302/149 and 307/149 has neither been assailed by the State nor by the complainant.
(2.) THE prosecution story is woven like this:- On December 30, 1998 informant Hardan (P. W. 37) submitted written report (Ex. P-119) at Police Station Kotputli with the averments that on that day at 12-1 p. m. while Dataram, Jainarain, Ganpat, Jainarain, Kheta had been to their house and chatting together, sixty three persons named in the report armed with axe, barcchi, lathi, jelly, bakri and swords came over there and dealt with blows on Kheta, Ganpat, jai Narayan and Sanwata with an intention to kill them. Hearing hue and cry when Ramchandra, Gulzari, Bhola, Lalaram, Sahjeet, Inder, Harda, Barfi, Patram, Mahada, Nathya and Mala came to rescue them they wee also beaten up Kheta died on the spot Jainarain and Ganpat were taken to hospital where they were declared dead. THE injured persons were admitted to the hospital. On that report a case under Sections 147, 148, 149, 323, 307, 447 and 302 IPC was registered and investigation commenced. Dead bodies were subjected to post-mortem, statements of witnesses were recorded, the accused was arrested, necessary memos were drawn. Since injured Ramchandra was serious he was referred to SMS Hospital Jaipur, later on he also died during pendency of investigation. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge Kotputli. Charges under Sections 302/149, 307/149, 326/149, 325/149, 324/149, 323/149, 147, 148 and 447 IPC were framed against the appellants, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 33 witnesses. In the explanation under Section 313 Cr. P. c. , the appellants claimed innocence and raised plea of alibi on behalf of thirty three appellants. In defence two witnesses were examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove. We have given earnest consideration to the rival submissions and scanned the record in the light of the criticism levelled by the learned counsel. Death of Jai Narayan was homicidal in nature. As per post- mortem report (Ex. P-15) he received following ante mortem injuries. 1. Lacerated wound 5 x 1cm x bone deep on left parietal region. 2. Lacerated wound (L shaped) 5 x 1cm x bone deep left occipital region with sign of bleeding through left ear. 3. Bruise 3 x 3 cm left cheek and swelling. 4. Incised wound 10cm x 5cm x bone deep (both bones cut) below right elbow. 5. Incised wound 7 x 2cm x muscle deep on left thigh anteriorly lower third. 6. Incised wound 12 x 12cm x muscle deep on left calf. 7. Incised wound 3 x 1cm x skin deep on medial aspect of right foot. 8. Lacerated wound 2 x 1/2cm x skin deep on lower 1/3rd of left leg. In the opinion of Dr. B. D. Gupta (P. W. 4) the cause of death was coma due to head injury. As per post-mortem report (Ex. P-16) deceased Ganpat Ram received following ante mortem injuries:- 1. Lacerated wound 6cm x 1cm x bone deep on left parietal region anteriorly posteriorly placed. 2. Lacerated wound 1-1/2 x 1/2 cm x skin deep lateral to left eye. 3. Lacerated wound 1-1/2 cm x 1/2 cm x bone deep on left cheek. In the opinion of Dr. Ashwani Goyal (P. W. 5) the cause of death was coma due to head injury. Deceased Kheta Ram as per post-mortem report (Ex. P-90) received following ante mortem injuries:- Incised wound 10 x 1cm x bone deep posteriorly placed on parietal occipital region slightly left to mid line. In the opinion of Dr. Birbal Yadav (P. W. 21) the cause of death was coma due to head injury. Deceased Ramchandra vide post-mortem report (Ex. P-91) received following ante mortem injuries:- 1. There is POP cast on left forearm. On removing POP cast there is fracture of radius and ulna bone. 2. There is fracture of lower and left fibula. In the opinion of Dr. Birbal Yadav (P. W. 21) the cause of death was due to haematoma over left frontal and parietal lob of brain. Sanwat (P. W. 43) vide injury report (Ex. P-70) received following injuries:- 1. Lacerated wound 3 x 1cm x skin deep on right parietal region. 2. Incised would 4 x 1cm x bone deep on right fronto parietal region. 3. Incised would 7 x 1cm x bone deep on right parietal region. 4. Incised wound 3 x 1cm x bone deep lateral to injury No. 3. 5. Incised would 2 x 1-1/2 cm x bone deep lateral to end of which attached to injury No. 4. 6. Lacerated wound 4 x 1cm x scalp deep on right occipital region. 7. Deformity with pain and tenderness of left forearm with lacerated wound 1 x 1-1/2 cm x bone deep. 8. Lacerated wound 3 x 1cm x skin deep on right leg. 9. Abrasion 2 x 1cm on left leg. 10. Lacerated wound 1 x 1-1/2 cm x skin deep on right thumb. Deceased Ramchandra S/o Gopal vide injury report (Ex. P-72) received following injuries:- 1. Diffused swelling on both side of forehead. 2. Diffused swelling on left parietal region. 3. Diffused swelling on right parietal region. 4. Deformity of left forearm. 5. Diffused swelling of left ankle. Barfi (P. W. 38) vide injury report (Ex. P-74) received one lacerated wound 2 x 1-1/2 cm x scalp deep on top of head. Bhola Ram S/o Arjun (P. W. 24) vide injury report (Ex. P-75) received following injuries. 1. Incised wound 6 x 2cm x muscle deep on back right to mid line. 2. Linear abrasion 15cm longer right side of back 3. Incised wound 6 x 1cm x bone deep on occipital region 4. Lacerated wound 4 x 1cm x skin deep on forehead 5. Abrasion 2 x 1cm on right elbow Guljhari (P. W. 23) vide injury report (Ex. P-77) received following injuries:- 1. Lacerated wound 3 x 1cm x scalp deep on left side of forehead. 2. Lacerated wound 1 x 1/4cm x skin deep on nose 3. Bruise 1 x 1cm on right knee 4. Lacerated wound 2 x 1/2cm x skin deep on right ring finger (finger is already deformed) 5. Lacerated wound 1-1/2 x 1-1/2 cm x bone deep on left thumb. Indraj (P. W. 25) vide injury report (Ex. P-79) received following injuries:- 1. Bruise 2 x 2cm on left shoulder 2. Bruise 5 x 2cm on left forearm 3. Abrasion 2 x 1cm on top of head Leela Ram (P. W. 36) vide injury report (Ex. P-80) received one bruise 6 x 2cm on right forearm. Bhola Ram (P. W. 24) vide injury report (Ex. P-81) received one swelling of 3cm diameter on occipital region. Data Ram (P. W. 22) vide injury report (Ex. P-82) received following injuries:- 1. Lacerated wound 5 x 1cm x scalp deep on left parietal region. 2. Lacerated wound 4 x 1cm x scalp deep lateral to injury No. 1. 3. Diffused swelling with pain and tenderness of lower part of left forearm, wrist and hand 4. Diffused swelling and pain and tenderness of right hand with lacerated would 1-1/2 x 2cm x skin deep on right middle finger. 5. Lacerated wound 2 x 1-1/2 cm x skin deep on left leg. 6. Bruise 8 x 2cm on right thigh. Sarjeet (P. W. 32) vide injury report (Ex. P-84) received one lacerated wound 6 x 1cm x scalp deep on left parietal region. Natha (P. W. 40) vide injury report (Ex. P-86) received following injuries:- 1. Lacerated wound 6 x 1cm x skin deep on dorsum of right hand. 2. Bruise 6 x 2cm on right shoulder 3. Bruise 5 x 2cm calf of right leg 4. Bruise 4 x 3cm on right knee. Mahada Ram (P. W. 41) vide injury report (Ex. P-88) received following injuries:- 1. Lacerated wound 4 x 1cm x scalp deep on top of head. 2. Lacerated wound 3 x 1cm x scalp deep posterior to injury No. 1. 3. Diffused swelling with pain & tenderness left elbow 4. Swelling with pain and tenderness of left hand 5. Swelling with pain and tenderness of right hand 6. Abrasion 4 x 3cm on left ankle. At this juncture injuries sustained by the members of the accused party may also be noticed. Accused Sheo Ram vide injury report (Ex. D-11a) received following injuries:- 1. Incised wound 2-1/2 x 1-1/2 cm x skin deep on right leg 2. Bruise 3 x 2cm on left side of chest. 3. Bruise 6 x 8cm on right side of chest. On X-ray vide X-ray report (Ex. D-12a) he sustained fractures of 4th and 5th ribs. Accused Shri Ram vide injury report (Ex. D-13a) received following injuries:- 1. Bruise 8 x 2cm on right forearm 2. Lose of portion of terminal phalangi of ring finger of left hand by incised wound 3. Incised would 1-1/2 x 1/4 cm x bone deep on terminal phalangi of middle finger of left hand. 4. Abrasion 2 x 1cm on left forearm. On X-ray vide X-ray report (Ex. D-14a) fracture of left hand was bound. Accused Prabhu vide injury report (Ex. D-15a received following injuries:- 1. Lacerated wound 1 x 1-1/2 cm x skin deep on right little finger. 2. Bruise 5 x 2 cm on lower part of left forearm and diffused swelling 3. Lacerated wound 3 x 1cm x scalp deep on right fronto parietal region. 4. Lacerated wound 2 x 1-1/2 cm x scalp deep on left parietal region On X-ray vide X-ray report (Ex. D-16a) fractures of shaft and ulna of left hand was found. Accused Mool Chand vide injury report (Ex. D-17a) received following injuries:- 1. Lacerated wound 1/2 x 1/2 cm x skin deep on upper lip 2. Abrasion 1/4 x 1/4 cm on right index finger 3. Bruise 5 x 8 cm on right shoulder Accused Devi Sahai vide injury report (Ex. D-18a) received one swelling of 3cm diameter on right parietal region. Accused Dhanshi vide injury report (Ex. D-19a) received one injury i. e. complaint of pain, but no injury was seen. Accused sheo Karan vide injury report (Ex. D-20a) received following injuries:- 1. Abrasion 1 x 1 cm on right hand 2. Bruise 10 x 2 cm on left thigh 3. Abrasion 2 x 1 cm on left shoulder Accused Rajveer vide injury report (Ex. D. 21a) received one lacerated wound 2 1/2 x 1 1/2 cm x scalp deep on left parietal region. At the hearing learned counsel for the appellants submitted that the factum of accused party having sustained serious injuries including those on vital parts of the body was well established and the trial Court has not doubted such injuries having been received by the accused party in the same incident and the said injuries having been explained by the prosecution witnesses, prosecution story should have been discarded and all the appellants should have been acquitted. In our opinion such a submission is too tall a submission and hence cannot be accepted. In State of U. P. vs. Mukunde Singh (1994) 2 SCC 191 it was indicated that merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the evidence of the prosecution witnesses ought not to be rejected outrightly; if the court finds it probable that the accused might have acted in exercise of right of self defence, the court ought to proceed to consider whether they have exceeded the same. In Takhaji Hiraji vs. Thakore Kubersing Chamansing (2001) 6 SCC 145, the Apex Court held that the court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting the prosecution case in its entirety for non explanation of the injuries sustained by the accused is erroneous. The Apex Court observed thus:- (Para17) "it cannot be held as a matter of law of invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non explanation of injuries assumes greater significance when the evidence consists of Interest or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. "
(3.) REVERTING to the case on hand we noticed that informant Hardan (PW. 37), who is son of deceased Kheta, in his deposition stated that on December 30, 1998 around 12. 30 PM while he was watering his field Kheta Ram, Ramchandra, Ganpat and Sanwat were puffing hubble bubble (Hukka) six persons from the accused side namely Sheo Karan, Gyarsa, Sheo Ram, Babaji, Umrao and Mahada came over there. Sheo Karan then told to fix stones on the field, but Kheta Ram wanted to give priority to hubble bubble over Pattargadi. On the other hand Mahada and other accused persons were adament to lay stones and they were not intended to puffing hubble bubble. They forced Kheta to proceed for pattar-gadi. While Kheta along with five persons started waling accused Gyarsa and Sheo Karan called other accused persons who were hiding nearby. When 40-45 accused persons appeared, Gyarsa and Sheo Karan implored them to lay Kheta and his five companions in the field. At that time accused Sheo Karan, Mool Chand, Prakash, Lachcha, Devi Sahai, Sheo Ram and Ram Niwas were armed with Pharsis, four accused had axes. Mala Ram, Prabha, Heera and Shri Ram had Khadi, Ramdayal had Jelly and others were armed with lathis. Mada Ram then caught old of Kheta and Ram Niwas inflicted pharsi blow on his head as a result of which Kheta fell down. Laxman then inflicted phasri blow on the head of Jai Narayan. Mala also dealt axe blow on the head of Jai Narayan. Prakash gave pharsi blow on hand and head of Jai Narayan. Ram Niwas gave pharsi blow on the thigh of Jai Narayan. Sheo Ram caused injury on knee of Jai Narayan with pharsi. Devi Sahai caused pharsi-blow on the palm of Jai Narayan. Whereas Shri Ram caused axe-blow on the back of Jai Narayan, Moola gave lathi blow on the head of Ganpat. Shri Ram caused axe-blow from back side on the eye of Ganpat, whereas Ramdayal caused jelly blow on his temple. Ramchandra and Gyarsa caused lathi blows on the head of Dayala. Onkar and Bhoma caused lathi-blows on the persons of Ramchandra. Ramdayal gave lathi-blow on knee of Ramchandra. Bhoma inflicted jelly-blow on thigh of Ramchandra. The persons who intervened were also beaten up. Hardan however did not sustain any injury. In the cross examination Hardan admitted that he got the FIR written in the court compound by an Advocate. Statements of Hardan gets corroboration from the testimony of Natha (PW. 40), Madha Ram (PW. 41), Sanwat (PW. 43), Barfi (PW. 38), Data Ram (PW. 29), Guljari (PW. 23), Bhola Ram (PW. 24), Indraj (PW. 25), Sarjeet (PW. 32), Leela Ram (PW. 36), Dhola Ram (PW. 39), Gyarsa (PW. 10), Birbal (PW. 14), Jagdish (PW. 17) Khayali Ram (PW. 18), Jai Ram (PW. 26) and Gulla Ram (PW. 35 ). Having scanned the testimony of prosecution witnesses we find that the prosecution is able to establish consistently that appellant Mada caught hold of deceased Kheta and appellant Ram Niwas inflicted pharsi-blow on his head. Ram Niwas also caused pharsi blow on the head of deceased Jai Narayan. Laxman inflicted pharsi-blow on the head of deceased Jai Narayan. Mala Ram on the head of Jai Narayan. Sheo Ram s/o Gyarsa gave pharsi blow on thigh of Jai Narayan and Shri Ram gave axe-blow on armpit of Jai Narayan. We also noticed that Shri Ram gave axe-blow near the eye of deceased Ganpat, Leela Ram caused lathi-blow on the head of Ganpat, Ramdayal gave lathi blow near the eye of Ganpat. Appellant Dhola gave lathi blow on the head of Ramchandra and caused injuries on the left hand of injured Mahada and Natha. Appellant Onkar s/o Gyarsa gave lathi blow on the head of deceased Ramchandra and caused injury on palm of injured Mahada and Data Ram. Bhoma also gave lathi blow on the head of Ramchandra. Learned counsel for the appellant took us to the site plan Ex. P. 31 and statement of Gopi Singh, IO (PW. 44) and canvassed that since blood was found on the field of the accused party, it could not be established that the accused were the assailants. According to learned counsel the complainant party was the aggressor and the accused party had right of private defence to protect their person and property. The prosecution has failed to produce any evidence to show that there was an unlawful assembly with common object and no case under Section 148 and 149 IPC is made out against the appellant and even charge under Section 447 IPC is not established. We have pondered over the submissions. ;