N.C.SHARMA, J. - (1.) ALL the five appellants have been convicted under Section 307 read with Section 149, IPC and sentenced to three year's rigorous imprisonment and a fine of Rs. 500/ -. Gyarsa, Rameshwar and Teja have further been convicted under Section 148, IPC and sentenced to one year's rigorous imprisonment. Surja and Jagdish, appellants, have also been convicted under Section 147, IPC and sentenced to 9 month's rigorous imprisonment. These convictions and sentences have been recorded by the Sessions Judge, Sikar by his judgment dated July 31, 1981
(2.) THE facts leading to this prosecution are that on November 17, 1980, at 9 30 p m. Prabhata (PW/9) lodged a First Information Report at the Police Station Pa tan, District Sikar, alleging that at about 7.00 pm Nands (PW13), who is resident of Panchu Kbarakda -within the Police Station, Patan, this that the goat was bleating and it seems that someone was taking away the goat. Nanda went after the person taking the goat. Prabhata (PW/9) also came out. Both of them followed the foot -tracks. Near the Dhani of Ganpat Meena, two small children informed that three persons were taking the goat towards the house of Ganpat. Thereupon Prabhata and Nanda went towards the house of Ganpat. In the meanwhile, Smt. Chameli, who was mother of Nanda, also came there. Prabhata told Ganpat that his men had brought his goat and the same may be returned. Ganpat told that Gyarsa and his brother -in -law Rameshwar, under intogication of liquor had brought the goat and the same would be returned Prabhata sent Nanda to call the village people He again insisted upon Nanda to make the persons appears who had brought the goat. Nanda replied that the goat may be take on the morning of the next day. Smt. Chameli thereupon stated that she will take the goat just now and then she will get the thieves arrested. Gyarsa son of Nanda then abused Smt. Chameli and inflicted an are blow on her head. Partiya son of Teeja inflicted a lathi blow. Then Rameshwar inflicted a blow with Kasiya on the head of Smt. Chameli. Prabhata was also assaulted by Gordhan by an axe and by Jagdish from the reverse side of the axe on his right shoulder and also by Tijia and Surga by lathis. Smt. Chameli ran back crying within lathis assaillants chased her. In the meanwhile, Makhan, Gurdayal and Surja reahed there and intervened. Smt. Chameli fell down on account of the injuries sustained by bet on her head. On the basis of this First Information Report, the Officer Incharge Police Station, Patan registered a case with regard to offences under Sections 147, 148, 149, 324, 307 and 379, IPC. He inspected the site and seized the blood -smeared and plain control send from the place of occurrence. The clothes which Prabhata and Smt. Chameli were wearing were also seized. On the information given by the various accused persons, recoveries of weapons of offence were also made. Dr. Krishna Kumar (PW/1), on Police requisition, examined the injuries sustained by Smt. Chameli and Prabhata, and found and incised wound with cut on under lying bone on right parietal and frontal region of scap. The Doctor called for the report of the Radiologist and the Radiologist by his report Ex. P/2 reported that there was fracture of right side of the frontal bone and, thus, this injury was treated as grievous injury. The Doctor found one more incised wound on left parietal and occipital region of scalp sustained by Smt. Chameli, which was by a sharp -edged weapon; but simple in nature. Rest of the injuries were bruises on different parts of body and swelling on the left -fore -arm. Prabhata also sustained two incised wounds, by sharp -edged weapon on left parietal region of scalp. But both these injuries were simple in nature. Rest were contusions and abrasions. On x -Ray, it was found that Prabhata had fracture at the shaft of proximal phalangs of little finger of right band. Dr. Krishna Kumar was of the view that in case injury No. 1 on Chameli was not treated in time, it would have proved fatal. After necessary investigation, the. Police filed a charge -sheet against the appellants. The case was committed to the Sessions Judge, Sikar for trial. He charged the appellants for offences tinder Sections 147, 148 and 307, IPC, read with Section 149, IPC The Sessions Judge believed the prosecution case. He also came to the conclusion that the appellants formed an unlawful asssembly with the common object Of murdering Chameli and, therefore, he held all of them guilty for the offences under Sections 307/149, IPC. He further held Gyarsa, Rameshwar, and Teja guilty under Section 148, IPC and Surja alias Surga and Jagdish under Section 147, IPC, and sentenced them as aforesaid.
(3.) THE learned Counsel for the appellants urged that there were material contradictions in the testimony of eye -witnesses with regard to the place where the goat was takan away and the number of persons who took away the goat. It was also urged that the incident had taken place at the house of Gyarsa appellant and during the incident Rameshwar, Gyarsa and Teja appellants had sustained injuries as is appearent from the injury report Ex. D/1, Ex. D/3 and Ex. D/4. It was pointed out that Rameshwar had sustained one injury by a sharp -edged weapon on right fore -arm. It was contended that the prosecution has failed to explain the injuries sustained by these three appellants and, thus, the genesis of the case as set -forth by the prosecution is wholly doubtful. According to the learned Counsel, these injured persons inflicted injuries on Smt. Chameli and Prabhata in exercise of right of private defence as the latter were agressors. Lastly, it was stated that some of the independent witnesses like Surja (PW/2), Hanuman (PW/3), Ruda Ram (PW/4) and Gurdayal (PW/5) have not supported the prosecution version;