TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS appeal is against the judgment and order of conviction and sentence dated 15. 11. 2000 passed by the Court of learned Additional Sessions Judge, Ratangarh (Churu) in Sessions case no. 42/1992 (91/1989 ). There was a cross case and that was Sessions Case No. 54/1992 (34/1990) wherein the accused persons, members of the complainant party in the present case, were convicted by the same Court i. e. Court of learned Additional Sessions Judge, Ratangarh (Churu) by judgment and order dated 15. 11. 2000. The appeal against cross case being S. B. Criminal Appeal No. 682/2000 is also being decided today by separate judgment. In Village Dassusar in Town Simsiya, agriculture land bearing khasra nos. 229, 357 and 30 total measuring 78 bighas 10 biswas was the agricultural land of one Moola Ram. Mst. Seu Devi @ Mst. Sua Devi is wife of Moola Ram. Moola Ram and Seu Devi had no issue. Moola Ram had two brothers Kalu Ram and Chela Ram. Kalu Ram also had no issue. Only Chela Ram had issue. Moola Ram died about 25 years ago from the year 1988. Jetha Ram claimed that he was adopted by Moola Ram and on 27. 10. 1958, Moola Ram executed a declaration (Pratigya Patra) (Ex. D/3) admitting Jetha Ram's adoption, which was verified from the Gram Panchayat Simsiya. However, after the death of Moola Ram, name of only Seu Devi was entered in the revenue record. Part of the said land was purchased by one Girdhari and his son Nirayana Ram by registered sale deed dated 4. 10. 1988 from Seu Devi and on the basis of that sale deed, by which 42 bighas 3 biswas land of khasra no. 229 and 6 bighas 5 biswas of khasra no. 357 total 48 bighas 8 biswas were sold by Mst. Seu Devi to Girdhari Lal and Nirayana Ram, mutation was opened and in the revenue record, the purchasers' names were entered (Jamabandi Ex. P/68 and its copy Ex. P/68a ). When this fact of alleged purchase of land by Girdhari Lal and Nirayana Ram came in the knowledge of Jetha Ram, the alleged adopted son of Moola Ram and Seu Devi, he filed a suit in the Court of Sub Divisional Magistrate, Ratangarh, copy of which is Ex. D/34. In the said suit filed against the purchasers, Girdhari Lal and Nirayana Ram, application for interim relief was filed on 31. 10. 1988, copy of which is Ex. D/36. On 4. 11. 1988, injunction order was passed in favour of Jetha Ram which was against the purchasers restraining them from interfering in possession and cultivation of Jetha Ram. Copy of this order is Ex. D/37. Jetha Ram died and in his place, his legal representatives became party in the suit on 30. 4. 12994. Copy of amended suit is Ex. D/31. One more suit was filed for cancellation of sale deed 4. 10. 1988 on 26. 9. 1991, copy of which is Ex. D/40, which was amended and copy of amended suit is Ex. D/42. The purchaser Nirayana Ram also filed cross suit, copy of which is Ex. D/38. Even a criminal case against Jetha Ram, alleged adopted son of Moola Ram and Seu Devi, and his son Gopal Ram was lodged. FIR was filed in the police station with allegation of theft wherein FR was submitted on 21. 12. 1988, copy whereof is Ex. D/43. Therefore, there was dispute between family of Jetha Ram (claiming right through adoption) with the purchasers Girdhari Lal and Nirayana Ram's family who purchased the property from the alleged adoptive mother of Jetha Ram by registered sale deed. As per the prosecution case, because of that rivalry both the parties were asserting their title and possession over the land of khasra numbers mentioned above. The incident which is under consideration in this appeal happened on 30. 6. 1989. As per the prosecution case on 30. 6. 1989 at 11:00 AM, complainant Mana Ram s/o Bhera Ram, by caste Jat, r/o Dassusar at Government Hospital, Ratangarh gave oral report (Parcha Bayan) to SHO Roshan Ali (PW24) of the Police Station, Rajaldesar (Ex. P/9) stating therein that he was taking his cattle to the well of village. There Mala Ram's son Bhanwara Ram came on a camel cart and shouted that the sons of Chokha Ram are ploughing the agricultural land and, therefore, they are required to be given a lesson. Jetha Ram, Gopal, Lachu and Hira Ram's sons came running making "rola" (shouting) and were saying that today, Chokha's sons will be killed. Complainant Mana Ram's nephew Shera Ram also went with Choka's sons to the agricultural field. The complainant immediately rushed towards the agricultural field. When he reached near the boundary of the agricultural field, in the tractor of Dharma Ram s/o Mohan Lal which was being driven by Bhanwara s/o Gopal, wherein Gopal Ram s/o Jetha Ram had "pistol" in his hand, Indra Ram s/o Jetha Ram, Lala Ram s/o Kumbha Ram, Bhanwara Ram s/o Mala Ram and Adu Ram's wife had "chosangi" ; Prabhu Ram s/o Jetha Ram and Tara Chand s/o Lachhu Ram had "shail" ; Bhanwara Ram s/o Gopal Ram, Narayan Ram s/o Pana Ram, Likhma Ram s/o Lachhu and wife of Mana Ram had "gandasies" ; Dharma Ram s/o Jetha Ram, Birju s/o Gopal, Kana Ram s/o Lala Ram, Mala Ram, s/o Kumbha Ram, Adu Ram s/o Nola Ram, Durga Ram s/o Lachhu Ram, Bhagwana Ram s/o Mala Ram, Mohan Ram s/o Hira Ram, Tulchha Ram s/o Hira Ram, Kunana Ram s/o Hira Ram, Narayan s/o Lachhu Ram, Bhanwari w/o Megha Ram and wife of Indra Ram had "lathies" in their hands, came down and shouted "kill-kill". All the accused with lathies, Shail, Jai, Barchi etc. Started beating Chokha Ram's sons - Gordhan, Tiku and Narayan, complainant's nephew shera Ram and Surja Ram Kumhar with intention to kill them. Accused tried to give beating to sons of Choka Ram - Bhagwana Ram and Harkha Ram who saved themselves and ran away from the place of the incident. The complainant, out of fear, sat under the fencing of the agricultural land during this fight. At that time, Bhanwara Ram Kaswa, Bhagwana Ram s/o Jhoomar Ram, Lala Ram s/o Nopa Ram were also passing through as they were going to their agricultural land. They also saw the incident. When these persons gave challenge to the accused, all the accused ran away. After that, the complainant went near the victims and found that Narayan, Tiku and Gordhan were already dead. Shera Ram and Sugana Ram were crying and they became unconscious. In the oral report, the complainant stated that to inform this incident, he came from the place of incident on foot to Rajaldesar and by the time, he reached there, he found Rajaldesar police took the injured to the Ratangarh Hospital and, therefore, he came to the Ratangarh Hospital. He stated that all the accused with common object killed Narayan Tiku and Gordhan and injured so many persons and that has been done because of the litigation between two families - one of Choka Ram and another of Jetha Ram. It is alleged that the land was purchased by Choka Ram in the name of his sons and he took possession of the land also from Mst. Seu Devi whereas Jetha Ram who is Mst. Seu Devi's husband's elder brother's son wants to grab the land and he has already filed suit in the revenue court. Due to this enmity, they killed and injured the victims. On the basis of this parcha bayan of complainant Mana Ram, FIR no. 10/1989 for offence under Sections 302, 307, 147, 148, 149, 447 and 323 IPC was registered and investigation started. The bodies of Shera Ram & Sugana Ram sons of Uda Ram and Gordhan Ram, Tiku Ram & Narayan Ram sons of Choka Ram, who died in the incident, were sent for post mortem and their post mortem reports were obtained. Other injured Harkha Ram, Girdhari, Thakar Ram, Bhagwana Ram s/o Nyola Ram and Bhagwana Ram s/o Chokha Ram were examined by the doctor and their medical reports were obtained. Site was inspected and relevant evidence was collected and seized from the site including the blood soil, plain soil and also certain household articles, agricultural implements, one air gun, one kulhari, one barchi, two wrist watches were also seized from the place of incident and their seizure memos were prepared. After post mortem, the bodies of the deceased were handed over to their relatives for last rites. It was found that the incident occurred before the site inspection Commissioner appointed in revenue suit could have submitted his report in the SDM's Court, Ratangarh in the suit filed by one of the party. In this fight, members of the accused party were also injured who were medically examined and copies of revenue record were also obtained and statements of witnesses were recorded under Section 161 Crpc. The accused were arrested and they gave information under Section 27 of the Evidence Act, on the basis of which the weapons of offence were recovered. Copy of order appointing Commissioner was also obtained and thereafter challan was filed against 27 accused persons.
(3.) THE trial court framed charges against accused Mala Ram for the offence under Sections 302 in alternative u/s 302/149, 307 in alternative u/s 307/149, 325, 323 in alternative u/s 323/149, 148 and 447 IPC. Against rest of the accused persons, charges for the offence under Sections 302 in alternative u/s 302/149, 307 in alternative u/s 307/149, 325/149, 323 in alternative u/s 323/149, 148 and 447 IPC were framed. THE accused denied the charges and sought trial. At the trial, the prosecution produced PW1 Jairaj Panwar, PW2 Smt. Seu @ Sui, PW3 Mana Ram, PW4 Bhagwana Ram, PW5 Thakar Ram, PW6 Lala Ram, PW7 Fefa Ram, PW8 Bhanwara Ram, PW9 Chokha Ram, PW10 Harkha Ram, PW11 Girdhari, PW12 Surja Ram, PW13 Mohan Ram, PW14 Bhagwana Ram, PW15 Bhoma Ram, PW16 Narayana Ram, PW17 Poorna Ram, PW18 Moola Ram, PW19 Ghadsi Ram, PW20 Bega Ram, PW21 Nawab Ali, PW22 Nagar Mal, PW23 Dr. Bhanwar Lal Verma, PW24 Roshan Ali, PW25 Dr. Lal Chand Suthar, PW26 Raghuveer Singh, PW27 Bhanwar Singh, PW28 Richpal Singh, PW29 Ram Lal, PW30 Bhanwar Singh, PW31 Ummed Singh and PW32 Suresh Tiwari and exhibited 130 documents. During trial, accused Deva Ram s/o Hira Ram died and, therefore, the case against him was abated vide order dated 16. 7. 1997. Statement of rest 26 accused were recorded under Section 313 Crpc wherein they denied all allegations and gave their own explanation. In defence, seven witnesses DW1 Kunana Ram, DW2 Mohan Ram, DW3 Chothu Ram, DW4 Lichman Singh, DW5 Salu Ram, Dw6 Bhanwar Singh and DW7 Ghanshyam Chandra were examined so also, 32 documents were exhibited. ;