S.S BYAS, J. - (1.) THE appeal is directed against the judgment of the learded Additional Sessions Judge, Nohar dated September 1, 1981, by which the three appellants Poorana Ram. Begha Ram and Dula Ram were convicted under Section 302/34, IPC and each was sentenced to imprisonment for life along with a fine of Rs. 1000/ -, in default of the payment of fine to further undergo six month's simple imprisonment. Accused Begha Ram was also convicted under Section 323, IPC but instead of being sentenced to any punishment, he was let off on six months, probation of good conduct.
(2.) SUCCINCTLY stated, the prosecution case is that PW 1 Bagiya and PW 2 Mukangir are the brothers of the deceased -victim Phoolgir. They have three more brothers by name Malgir, Heeragir and Arjungir. Malgir was allotted agricultural land in Rohi (Jungle) of their village Bannasar P.S. Pallu district Sri Ganganagar. This land of allotment has been shown by marks 1 and 4 in site plan Ex. P 3. They had sown Gawar crop in the portion shown by mark 1 in the month of July, 1980. At about 7.00 a.m. on August 7, 1980, PW 2 Mukangir and Phoolgir went to the aforesaid field with two camel ploughs to sow Gawar in the portion shown by mark '4' in the site plan. They had taken one camel calf with them. At about 9.00 a.m. when they were ploughing the portion '4', the camel -calf stranded in the portion shown by mark '1' in site plan Ex. P 3. Mukangir (PW 2) went in the portion '1' to bring back the calf -camel. The three appellants accompanied with the two women (one being the wife of appellants Dullaram and the other being the wife of appellant Begaram) came to him. Begaram and Dullaram had Kasiyas, Pooranaram had an axe, the wife of Begaram had a Jayee and the wife of Dullaram had a lathi. Accused Dullaram and Begaram struck blow to Mukangir with their Kasiyas. Mukangir raised alarm and his brother Phoolgir came to his rescue. Phoolgir asked the appellants as to why they were beating Mukangir. Thereupon the appellants left Mukangir and diverted their assault on Phoolgir. They landed blows to him with axe and Kasiyas. Phoolgir fell down in the field. He was also landed blows by the two ladies. Mukangir (PW 2) escaped and mounting on a car went to his brother Baggir (PW 1) whom he found out -side the house of Ratiram Jat. Mukangir narrated the incident to Baggir and other persons who were sitting there. Baggir took PW 3 Ramchandra and some other persons and went to the spot. The party also took a camel -cart with them. They found Phoolgir lying unconscious with wounds bleeding. He was put in the camel -cart. While the party was taking Phoolgir to their village in the camel -cart, Phoolgir breathed his last in the way. Baggir went to Police Station, Pallu and lodged a report of the incident at about 1.30 p.m. on the same day. The police registered a case and proceeded with investigation. The Station House Officer Mohansingh PW 9 arrived at the place where the dead body of Phoolgir was lying. He prepared the inquest report and Panchnama of the victim's dead body. From there, he went to the site. He inspected the site and prepared the site plan and site inspection memo. He also seized blood -stained soil from there. The medico -legal autopsy of the victim's dead body was conducted by PW 6 Dr. Mrs. Sushila Chaudhary on the spot. The doctor noticed the following ante -mortem injuries on the victim's dead body: External (1) Incised wound 3' x 1/2' x 1' on scalp 1 -1/2' above right mastoid process; (2) Incised wound 2 -1/2' x 1/2' x 1' on scalp 2' above right mastoid process; (3) Incised wound 3 -1/2' x 1/2' x 1' on scalp 2 -1/2' above right mastiod process; (4) Incised wound 2 -1/2' x 1/2' x 1' on scalp 4' above right mastoid process; (5) Incised wound 2' x 1/2' x 1 -1/2' on scalp 5' above and posterior to right mastoid process; (6) Incised wound 3 -1/2' x 3' x 1/2' x 1/4' on scalp 1' above injury No. 5; (7) Incised wound 2 -1/2' x 1/2' x 1/2' on scalp 1' posterior to injury No. 2; (8) Incised wound 1' x 1/2' x 1/2' on scalp 4' above left mastoid process; (9) Incised wound 2 -1/2' x 1' x 1 -1/2' on back of left shoulder joint; (10) Incised wound 2' x 1' x 1/2' on back of left shoulder joint 1/2' medial to injury No. 9; (11) Incised wound 1' x 1/2' x 1/8' on right hand 2' above right wrist joint anteriorly; (12) Abrasion 2' x 1/2' on left elbow joint. Internal Fractures of right frontal, parietal and occipital bones. In the opinion of the doctor, the cause of death was shock caused by head injuries leading to brain damage. All the injuries except injury No. 12 were opined to have been caused by sharp -edged weapons. The post -mortem examination report prepared by the doctor is Ex. P 11. The injuries of PW 2 Mukangir were examined by Dr. (Mrs.) Sushila Chaudhary. One incised wound and one lacerated wound were found on his body as mentioned in the injury report Ex. P 12 The culprits were arrested and in consequence of the information furnished by accused Dullaram, Begaram and Poorna Ram, two Kasiyas and one axe were recovered. In consequence of the information furnished by accused Mst. Lichma, one lathi was recovered. At the time of the arrest of accused Dullaram, some injuries were found on his person. His injuries were got examined by a doctor. On the completion of the investigation, the police presented a challan against the appellants and the two ladies Mst. Prema and Mst. Lichma in the Court of the Judicial Magistrate, Nohar, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge filmed charges under Sections 148, 302, 302/149, 323 and 323/149, IPC against all of them, to which they pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined ten witnesses and filed 'some documents. In defence, the accused examined one witness DW 1 Abdul Wahiz Patwari. The defence taken by the accused was that the portion shown by mark '1' in site plan Ex. P 3 was in their long, continuous and peaceful possession since 1967. They had sown the Gawar crop in it 3 on the day of the incident, the crop had grown -up to 12' in height. Except accused Dullaram, all of them denied their presence on the scene of the occurrence. They denied that they inflicted injuries to the deceased or his brother Mukangir. Accused Dullaram admitted his presence on the scene of the occurrence. In his statement recorded under Section 312, Cr. PC. he stated that the deceased and Mukangir came to forcibly up -root the crop standing in the portion shown by mark '1' in site plan Ex. P 3. They further wanted to unlawfully cultivate and sow the Gawar crop in it. They landed blow to him. In order to save himself from being beaten, he struck blows with his Kasiya to the deceased and Mukangir. On the conclusion of trial, the learned Sessions Judge recorded his findings as under: (1) the prosecution had failed to prove that the disputed portion shown by mark '1' in site plan Ex. P 3, in which the incident had taken place, was in possession of the complainant party; (2) the two ladies (accused) were not present on the scene of the occurrence and took no part in the commission of the crime; and (3) the deceased Phoolgir was struck blows by the three appellants with axe and Kasiyas. They thereby caused his death. The assault on Phoolgir was joint and concerted with common intention to kill him.
(3.) AS a result, the two lady accused were acquitted of the offence they were charged with. The appellants were also acquitted of the offence under Section 148, IPC. Accused Begaram was held individually liable for causing injuries to Mukangir. The appellants were held guilty under Section 302/34, IPC. They were consequently convicted and sentenced as mentioned at the wry out -set. Aggrieved against their conviction, they have taken this appeal. Accused Poorana Ram passed away during the pendency of the appeal. As such, the appeal, so far he is concerned, stands abated.;