GODARA, J. - (1.) This appeal is directed against the judgment and order dated 21-12-95 passed by the learned Addl. Sessions Judge, Phalodi in Sessions Case No. 4/93 (141/88) whereby the accused-appellants have been convicted and sentences as under : (1) Kesara Ram (since deceased) (i) u/s. 147, I.P.C. One year's R.I. (ii) u/Ss. 302/149 I.P.C. L.I. and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I. (iii) u/S. 323, I.P.C. 6 months' R.I. and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I. (iv) u/S. 379/149, I.P.C. 6 months' R.I. and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I.
(2.) Bhura Ram (i) u/S. 147, I.P.C. One year's R.I. (ii) u/S. 302, I.P.C. L.I. and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I. (iii) u/S. 323/149,I.P.C. 6 months' R.I. and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I. (iv) u/S. 379/149, I.P.C. 6 months' R.I and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I. 3. (a) Mula Ram (i) u/S. 147, I.P.C. One year's R.I. (b) Sohan Lalo @ Hanumana Ram (ii) u/S. 302/149, I.P.C. L.I. and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I. (c) Bhanwar Lal (iii) u/S. 323/149, I.P.C. 6 months' R.I and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I. (iv) u/S. 379,149, I.P.C. 6 months' R.I. and a fine of Rs. 1000/- and, in default of payment of fine, 6 months' S.I. 2. Briefly stated the facts giving rise to the prosecution of the appellant and consequential trial resulting in present appeal are that the accused-appellants are residents of village Chimana. Harjinath (P.W. 22), S.H.O., P.S., Jamba, at Phalodi, on 10-7-88, was informed by Kesara Ram (deceased) that Roopa Ram (deceased) had killed Ugrasen who was, admittedly, maternal nephew of Kesara Ram. Harjinath reached the village Chaku in the morning of 10-7-88 itself whereat Smt. Saudi (P.W. 2) wife of Roopa Ram was present at her 'Dhani' situated in her field. Harjinath immediately recorded statement of Smt. Saudi (Ex. P.1) at 6 a.m. She reported that their agricultural land measuring about 148 bighas (exact 148 bighas and 12 biswas) is located within the territory of village Chaku which is under their cultivatory possession since the time of their father-in-law. They had built up a residential 'Dhani' in the field. Her husband Roopa Ram's brother Dana Ram (P.W.1), Dana Ram's wife Smt. Jugti who is deaf and dumb as well as the children of Roopa Ram resided jointly in the 'Dhani'. Kesara Ram (accused-appellant) asserted that he had purchased their agricultural land and, therefore, they were being pressurised to leave and vacate the 'Dhani' and to go elsewhere. Ugrasen (deceased) who is resident of village Nathusar and was Kesara Ram's sister's son, visited their 'Dhani' twice in the company of Kesara Ram asking them to vacate their possession of the 'Dhani' as well as the field. Dana Ram and her children had gone to the 'Dhanis' for collection of grains and it was on 9-7-88 at about 5 p.m. that a Jonga jeep came to their Dhani and the same was parked at a little distance. Kesara Ram, Ugrasen, Bhura Ram, Kesara Ram's two other sons, Mula Ram, Moti Ram, Sohan Singh residents of village Chimana, Bulidan Singh, Bane Singh, Sukha Ram, jeep driver Ladu Ram and Ummaid Singh who are also residents of village Chimana got down from the jeep and they all entered the 'Dhani'. Meanwhile, Sohan Singh went towards 'Dhani' of Gumana Ram, Barber while Bulidan Singh and Bane Singh headed towards 'Dhani' of Bhur Singh (P.W.4). Ugrasen and his associates entered their 'Dhani' and enquired about her husband Roopa Ram. She told them that Roopa Ram had gone to the 'Dhani' of Bhur Singh. Ugrasen asked that all the household articles lying in the 'Dhani' be loaded in the camel-cart being brought by them and they should live elsewhere in the village. Meanwhile, the camel-cart was brought to their 'Dhani' which was being driven by Rekha Ram son of the appellant Kesara Ram. The household articles including the beddings, cots, utensils etc. as are detailed in memorandum (Ex. P. 7), were loaded in the camel-cart. The accused-persons attempted to enter the 'jhumpa' to fetch out other household articles left inside while Roopa Ram who was hiding inside the 'jhumpa' whispered that she should not allow the accused-persons to enter the 'jhumpa' else he would be killed to death. She shouted in front of the accused-persons resisting their entry into the 'jhumpa' on which Kesara Ram inflicted lathi blows on her head and left arm. Ugrasen caught her hand and she was thrown aside. Ugrasen was about to enter into the 'jhumpa' and, in the meantime, Roopa Ram fired from his gun at-Ugrasen and the gun shot fire hit Ugrasen on his abdomen and, consequently, he fell down. Bhura Ram, who is son of Kesara Ram, entered the 'jhumpa' and he caught hold of Roopa Ram and dragged him out of the 'jhumpa'. Accused-persons assaulted Roopa Ram with fists and kicks shouting that he be killed to death. Bhura Ram, who was armed with an axe, gave two or three forceful blows of axe in his possession on the head. These injuries proved fatal and Roopa Ram died on the spot. Kesara Ram, Moti Ram, Mula Ram etc. picked up injured Ugrasen and loaded him in the jonga jeep. Bhura Ram also took away the S.B.B.L. gun of Roopa Ram while retreating in the jeep. Rekha Ram drove his camel-cart along with the household articles loaded on the same. Smt. Jugti had fled away from there. It was also stated that Bhur Singh (P.W. 4) and Khiyaram Jakhar (P.W. 13) whose 'Dhanis' were situated in the neighbourhood of their 'Dhani', were witnesses to the occurrence.
(3.) Harjinath (P.W. 22), on the basis of aforesaid statement (Ex. P. 1) of Smt. Saudi got registered FIR No. 22/88 (Ex. P. 27) under Ss. 147, 148, 149, 447, 323, 302 and 379, I.P.C. and commenced investigation at the site. He prepared site plan (Ex. P. 25) and memorandum (Ex. P. 26) thereof. Inquest report (Ex. P. 4) and panchanama (Ex. P. 5) of the dead body of Roopa Ram were also prepared. He also seized clothes of the deceased vide Ex. P. 6 and Ex. P. 2. Rekha Ram had removed household articles of Roopa Ram, as above, on the camel-cart and the same having been unloaded on a public way at a little distance from the 'Dhani', were seized vide Ex. P. 7 memo.;