- (1.) This criminal appeal has been preferred against the judgment dated 27.2.1996 passed by learned Sessions Judge, Sawaimadhopur, in Sessions Case No.174/1993, whereby appellants were acquitted of the charges u/s 307, 307/149, 326 and 326/149 IPC and convicted for the offences punishable u/s 147, 148, 325/149, 324/149 and 323/149 IPC and were not punished but ordered if each of them furnishes a personal bond of Rs.3000/ - with a surety of the like amount and each of them deposits Rs.1,000/ -for expenses of prosecution, they may be given the benefit of probation on condition that they will maintain peace and good conduct during two years. On depositing the amount, Rs.3,000/ - were ordered to be paid to Ramjatan @ Mota and Rs.1,000/ -were ordered to be paid to Ramratan.
(2.) In brief, facts of the case are that on 12.8.1993 Ram Kishore Meena (PW -5) submitted a written report (Ex.P -3) at Police Station Mallarnadoongar alleging, inter alia, that on the day at about 1 1/2 O'clock he heard a noise of crying and he rushed to an agricultural field where his brother Ram Ratan was harvesting, he saw there that Ram Kishan, Ram Kalyan, Moji Ram, Shyoji Ram, Smt. Phula W/o Shri Ram Kishan, Smt. Kistoori W/o Shri Ram Kalyan and Ms Lotanti D/o Shri Ram Kishan armed with lathies, Gandasi, Karawari (axe) and Dantli, were giving beatings to Ram Ratan and Mota. Appellant Moji Ram gave blow of an axe on head and right shoulder of Mota. Appellant Ram Kalyan gave blow of axe on left leg of Mota. Appellant Shyoji Ram gave blow of lathi on hand and back of Mota. Smt. Phula W/o Shri Ram Kishan gave blow of sickle (Dantli) on right leg of Mota. Accused Ram Kalyan gave a blow of axe (Karwari) on head of Ram Ratan. Accused Ram Kishan also gave a blow of Karwari (axe) on head of Ram Ratan. Complainant Ram Kishore and Sita Ram intervened. Later on, villagers - Phool Chand and Jhandoo also arrived at the place of occurrence. On this information, a formal FIR No. 142/1993 (Ex.P -4) was registered. During investigation, injured were examined by Medical Officer. Site was inspected by police. Statements u/s 161 Cr.P.C. were recorded. Land record was obtained from the area Patwari. After due investigation, chargesheet was filed against the appellants. Learned trial court charged the appellants for the offences u/s 307, 307/149, 324, 324/149, 323/149, 147 and 148 IPC. Appellants denied the charges and claimed trial. Prosecution examined 15 witnesses and exhibited 16 documents. Appellants -accused were examined u/s 313 Cr.P.C. All of them refuted the evidence adduced by the prosecution. Appellant - accused Moji Ram stated, in particular, that when he asked Ram Ratan, Ram Jatan, Ram Kishore, Ram Charan, Babu Lal, Shanker, Ram Bai, Sukhi and Geeta not to cut swallow -wort situated on common boundary wall of agricultural fields of both the parties, then they rebuked him and said that you have damaged the common boundary wall. When accused denied, Ram Jatan gave a blow of axe on him. Ram Ratan beat him with stick. Thereafter, all ran away. When accused cried, Gajanand and Ramhet came there and intervened. In defence, appellant -accused Moji Ram appeared as witness (DW -1) and six documents were exhibited. After hearing both the parties, learned trial court decided the matter vide impugned order dated 27.2.1996 and passed the order of conviction and sentence, as stated above.
(3.) Learned counsel for the accused appellants submits that the prosecution has utterly failed to prove the genesis of the story in the said incident. Accused appellant Moji Ram also received injuries by sharp -edged weapon. Prosecution did not give any explanation about injury received by the appellant -accused Moji Ram. Learned trial court erred in not extending the right of private defence of a person or property to the accused -appellants. Learned trial court did also not consider the fact that a cross case was registered by the appellants - accused party against the victims of the instant case. Police after investigation, submitted chargesheet in that matter too. The present case is of free -fight, where both the parties gave beatings to each other. No independent witness has supported the prosecution story. Findings of the learned trial court are based on surmises and conjectures.;