ISRANI, J. - (1.) THIS is D. B. Criminal appeal against the judgment of conviction and sentence dated 5-1-1985 passed by the learned Sessions Judge, Tonk convicting and sentencing the accused appellants as under:- Mangt Lal U/s 302/34 IPC. Life imprisonment and a fine of Rs 200/-, in default of payment of fine, to further under go 2 months R. I. U/s 323/34 IPC. One years' R. I. U/s 325/34 IPC. Five years rigorous imprisonment and fine of Rs. 100/-, in default, one months' rigorous imprisonment. Raisal U/s 302/34 IPC. Life imprisonment and a fine of Rs. 200/-, and in default two months R. I. U/s 325 IPC. Five years rigorous imprisonment and fine of Rs. 100/-, in default, one month's rigorous imprisonment. Durga U/s 302/34 Life imprisonment and a fine of Rs. 200/- in default two months rigorous imprisonment. U/s 325 IPC Five years rigorous imprisonment and a fine of Rs. 100/-, in default one month's R. I. Meva U/s 302 IPC. Life imprisonment and a fine of Rs. 200/-, in default of payment of fine, two months rigorous imprisonment. U/s 325 IPC. Five years rigorous imprisonment and fine of Rs. 100/-, in default, one month's rigorous imprisonment. U/s 323 IPC. One year rigorous imprisonment.
(2.) BRIEFLY the facts Khasra Nos. 236 and 237 in village Sirohi. The complainant party and the accused party are near relatives. Accused appellant Mangi Lal and Govinda are real brothers and deceased Rampal is son of Govinda. Both the parties claim their right over the disputed land mentioned above. On 23-6-3983 at about 9. 00 A. M. , according to the P. I. R. the complainant party was cultivating the disputed land and the accused appellants and two other persons came there with lathis in their hands. They told that they will not allow them to cultivate the disputed field. The accused persons then started giving beating to Rampal, Arjun, Ram Chandra and Modiya. Smt. Dhani w/o Arjun, Sarwani and Nolaji, who were coming towards the field tried to intervene, but were also beaten by the accused-appellants by lathis. The complainant Kedar Prasad also went thereto intervene in the matter. The accused persons after causing injuries went away from the spot and at that time many other persons also reached there. Rampal was taken to the hospital, who succumbed to his injuries on the way. The other injured persons went to the hospital at Nivai and a written report (Ex. P. l) was submitted at Police Station Nivas, on the basis of which FIR (Ex. P. 2) was registered under Sections 147, 148, 149, 302, 307, 447 and 323 IPC. It may be mentioned that the members of the accused party also received injuries and all the 4 accused appellants received 32 injuries on their persons. Out of these injuries, 19 were on the head by sharp and blunt edged weapons. There was fracture of parietal bone of accused appellant Meva, which was grievous. Accused appellant Durga also received grievous injuries on his person and a cross F. I. R. was also lodged by the accused party against the complainant party regarding the same occurrence. After investigation, the police filed a challan against the accused persons. The Magistrate committed the case to Sessions. The evidence of both the parties was recorded by the trial court and thereafter the accused were examined under Sec. 313 Cr. P. C. After completion of trial and hearing both the sides, the accused appellants were convicted and sentenced as indicated above. The main contention of Mr. A. K. Gupta, learned counsel for the appellants is that the accused appellants were in possession of the disputed field and while they were cultivating the land, the complainant party came armed with lathis etc, and wanted to take over forcible possession from the accused appellant. He therefore, does not deny the occurrence, but claims the right of private defence as the complainant party came fully prepared and armed to assault and beat the accused appellants and take forcible possession of the disputed land. It has been pointed out that in the charge sheet filed by the prosecution it has been clearly mentioned that during investigation by the police, it was revealed that accused Mangi Lal and others left village Sirohi several years ago and settled in village Bambori. The brother of Mangi Lal was father of deceased Rampal. After his death, Rampal was cultivating the lands of both brothers (Govinda and Mangilal) and Khatedari therefore, remained in the name of Rampal. On enquiry from neighbour, it further revealed that few years back Mangi Lal and others came back to village Sirohi and on their demand, some fields were given by Rampal to them. These fields given to Mangi Lal and others also included the disputed fields bearing Khasra Nos. 236 and 237. However, dishonesty came in the mind of Rampal and about one year earlier, he took over possession of the land forcibly and cultivated it. The khatedari rights continued to be in the name of Rampal. It further revealed on enquiry that at the time of occurrence, the accused persons were cultivating the disputed fields. When the complainant party came to stop them from doing so, the quarrel took place. These facts are contrary to the facts mentioned in the F. I. R. as in the F. L R. the accused persons were shown to be aggressor's. A cross case bearing No. 84/83 under Sections 147, 148, 149, 325, 324 and 328 IPC has also been registered against the complainant party. The learned counsel, therefore, contends that the prosecution instead of proving the facts revealed on enquiry, have changed the whole version and have produced the witnesses who deposed that the accused persons were aggressors and the possession of the disputed fields was with the complainant party, who were cultivating the field at the time of occurrence. It is, therefore, contended that the prosecution has not only improved their case, but have, in fact, totally changed the same. It is pointed out that infact at the time of occurrence the crop of sugarcane had been cultivated by the accused appellants, which shows that they continued to be in possession since the possession of the disputed field was given to them by deceased Rampal about 5 years back. He has pointed out that P. W. 1 Kedar, who lodged the F. I. R. has stated in his statement recorded in court that at the time of occurrence no crop of sugarcane was in the field. P. W. 2 Ram Chandra s/o Govinda, P. W. 3 Arjun s/o Govinda, P. W. 4 Mooliya s/o Govinda, P. W. 5 Ramraj PW. 9 Ram Kishore and P. W. 10 Noli have stated that the possession of the disputed land was with deceased Rampal and there was no cultivation of sugarcane in the field. It has been pointed out that PW 2 Ram Chandra, P. W. 3 Arjun, P. W. 9 Ram Kishore and PW 10 Noli are the eye witnesses, but in their statements under Sec. 161 Cr. P. C. they have given different version of the story, which is same as has been revealed in the charge sheet on enquiry to the prosecution. P. W. 2 Ram Chandra in his statement (Ex. D. 3) has stated that he saw Mangi Lal and his sons including Durga, Meva and Gudla etc in the disputed field and Durga was ploughing the land. Thereupon they asked these persons to stop ploughing the field as the land belonged to deceased Rampal. Similarly, P. W. 3 Arjun was confronted with his statement u/s 161 Cr. P. C. (Ex. D/4), in which he has stated that in Choparawala-khet' (disputed land) when they reached at the spot, Mangilal, his sons Durga, Meva. Raisal and his wife Gadul were there and Durga was ploughing the field, whereupon they challenged them why they were cultivating the land. In cross examination in court when questioned that they had caused injurjies to Mewa and other accused persons, he denied the same and stated that he did not see any injury on the person of accused and they might have received the injuries among themselves. P. W. 4 Moolya was also confronted with his statement u/s 161 Cr. P. C. (Ex D. 5) in which he has stated the same as stated by P. W. 3 Arjun. P. W. 5 Ramraj, who is said to be owning a field near the disputed field has also stated that in Chopara-wala-khet (disputed land) at about 9. 00 A. M,. Mangi Lal and his sons Durga, Mewa and Mst. Gadul etc, were present and were ploughing the land. Whereupon, the complainant party viz. Rampal, Arjun, Ram Chandra etc. , came with ploughs and asked them why they are cultivating the land of deceased Rampal. P. W. 6 Radha Kishan who is also a person who owns a field in neighbour-hood of the disputed land, was confronted with his statement u/s 161 Cr. P. C. (Ex. D. 7), in which he has stated that accused Mangilal and others used to cultivate this land before last year. P. W. 10 Mst. Noli d/o Arjun was also confronted with her statement recorded u/s 161 Cr. P. C. (Ex. D 8), in which she has stated that Mangilal, Mewa, Raisal, Durga and Mst. Gadul were ploughing their land.
(3.) THUS, it is clear that, in the earlier version given by these witnesses before they were examined in the court, they have admitted that the accused persons were already ploughing the land when the complainant party reached there and challenged them why they were cultivating the !and belonging to Rampal, whereupon the fighting took place. This is absolutely contrary to the version given by these witnesses when they were examined in the court. It is also perti-nent to note that none of the witnesses have explained the injuries caused on the person of accused party, some of whom have received grievous injuries. It has been stated by them that these injuries, if any, might have been caused to them amongst themselves. It may also be pointed out that the witnesses of the complainant party have stated that no crop of sugarcane was standing in the disputed land, whereas P. W. 16 Karan Singh, Investigating Officer has stated in his statement that he cannot say who cultivated the crop of sugarcane in the disputed field. Some of the witnesses of the complainant party have also stated that they had not cultivated the sugarcane in the disputed field. P. W. Ramraj has also admitted in Ex. D 6 that crop of sugarcane was cultivated since last 2 years in the disputed field. He also admits to have litigation with the accused persons. P. W. 9 Ram Kishore, Patwari has also stated that the crop of sugarcane and 'rijka' was cultivated in the disputed land, but he does not know who cultivated the same. He has also admitted that the disputed land belongs to both the parties. He further states that he does not know how the disputed land was in the name of deceased Rampal alone. P. G. 11 Dhani w/o Arjun was also confronted with her statement u/s 16' Cr. P. C. (Ex D/11) in which she has stated that when she went at the disputed field on the day of occurrence, she found that the accused persons were ploughing the field and her husband and others of the complainant party were stopping them from doing so. She also admits that there was sugarcane crop in the disputed land at the time of occurrence. She has clearly stated that deceased Rampal stopped Mangilal from ploughing the land. P. W. 15 Sarwan in his statement u/s 116 Cr. P. C. (Ex D. 12) has also stated that in the disputed land the crop of sugarcane was there and the accused persons were ploughing the field, whereupon, the complainant party asked them not to do so. Ex. D. 1 is the site map, which even though prepared by the prosecution, was not exhibited by it. but was exhibited by the accused persons in defence. The description of Ex. D 1 shows that a portion of the land was recently ploughed and sugarcane had been cut and collected and was lying in the field. The accused persons from the beginning have been claiming that they had cultivated the sugarcane in the field, whereas the prosecution witnesses have either denied the very existence of crop of sugarcane on the field or have stated that it is not known to them who had cultivated the sugarcane crop. Ex D. 13-A is the injury report of Mangilal, who received 7 injuries, Ex. D. 14 is the injury report of Raisal of the accused party who received 12 injuries. Ex. D 15 is the injury report of accused appellant Durga, who received 2 injuries, out of which one was fracture of left ulna. Ex. D 17 is the injury report of appellant Newa, who received 10 injuries. Ex. D 13 is the X-ray report of appellant Mewa which shows that there was fracture of parietal bone. These reports clearly show that the prosecution has absolutely failed to explain these injuries received by the members of accused party. Now coming to the defence version, accused appellant Mangilal in his statement u/s 313 Cr. P. C. , has stated that the disputed land was in their possession and they had cultivated Rijka and wheat. Sugarcane had also been cultivated by them. On the day of occurrence, Durga was ploughing the field, 11 persons of the complainant party came and started beating, on which Durga shouted. Thereupon, he went towards that side and asked them why they were beating his son. Mewa, Raisal and Sukhdeva also came there. Mewa was beaten and thrown on the ground, who unconscious. Raisal was also beaten and thrown on the ground. He was beaten by Arjun. He was sitting on the 'medh' and did not beat any person. He has further stated that he is a blind person and cannot see. He is 80 years old. Appellant Mewa in his statement u/s 313 Cr. P. C. has stated that he was medically examined and had received fracture on his head, which was caused to him by the complainant party. All the accused persons have given the same version as given by accused appellant Mangilal. ;