- (1.) DURING the famine works, a road was to be constructed from Hotrada Nada to Ajit, about 6 kms. Long. Sanction by the State Govt. in this regard had been issued on 27/28. 5. 83 and the work of construction started on 30. 5 83. The construction was started from Ajit and was proceeding towards Samdari. It is alleged that the Sarpanch of Gram Panchayat Ajit, Shri Bakhtawar Singh asked the mistry Natwar Lal etc. to stop the work of the road. The Sarpanch Shri Bakhtawar Singh wanted that the road should proceed via Dudrada. On this, the matter was reported to the local M. L. A. , Shri Dhara Ram, whereupon the Assistant Engineer, P. W. D. , Samdari, met Shri Dhara Ram and he was told by Shri Dhara Ram that the road should continue from Hotrada Nada. The work was then resumed on 4. 6. 83 but on 5. 6. 83 again Shri Neku Khan reported to Shri Dhara Ram that Shri Bakhtawar Singh had threatened him with dire consequences if the road would start from Hotrada Nada and had asked him to stop the construction of the road. Shri Dhara Ram assured Neku Khan that nothing will happen and that the work should continue. Then on 8. 6. 83, when Shri Dhara Ram, M. L. A. was sitting in the Co-operative Bank, Samdari, Sarpanch Bakhtawar Singh came there and asked Shri Dhara Ram to get the work of the road stopped and also threatened him to the effect that if the work continued, he would see him and Neku Khan. Shri Dhara Ram tried to appease Shri Bakhtawar Singh and told him that if he had any objection, he should take recourse to legal proceedings. On this Bakhtawar Singh and his com-panions left the place in anger. However, it appears that before this on that very day i. e. on 8. 6. 83 at about 10 a. m , Mool Singh and some other persons wanted to stop the construction and threatened the labourers not to continue the work of the road, whereupon Neku Khan and others are alleged to have attacked them and an altercation is alleged to have taken place between both the parties. Reports of this incident were lodged at police station, Samdari. A case against Neku Khan, Akbar Khan and others was registered as No. 46/83 at about 5. 30 p. m. and a counter case was also registered against the other party.
(2.) THEN it is alleged that on 9. 6. 83, at about 10. 30 or 11 a. m. , both the parties collected at Hotrada Nada where the work of the road was in progress. The M. L. A. , Shri Dhara Ram along with S. D. O. and some other persons had reached there and Bakhtawar Singh and his party was also there. The Junior Engineer, Shri Mathur, two Patwaris were also there. It is alleged that the revenue record was looked into and the S. D. O. decided that the work should continue as it was in accordance with the 'katan' road. When this decision was taken, Neku Khan declared that Bakhtawar Singh had threatened him and may get him killed adding that if he was so killed, his statue may begot constructed and inaugurated by Smt. Indira Gandhi. However, the S. D. O. instructed the police to afford him protection and to maintain peace and on this all the parties left. The work continued. When these persons reached village Ajit, at about 11 a. m. they found some 30 or 40 persons having collected in the Panchayat Bhawan and it is alleged that Sarpanch Bakhtawar Singh told the crowd that as the S. D. O. has not stopped the work of the road, they should go to the site with lathis and get the work stepped by beating people upon sensing trouble, Sale Mohd. went to Akbar Khah at his well and asked Akbar Khan to intervene, whereupon Akbar Khan went to Hotrada Nada. On the way, after they came 4 or 5 kms. , Akbar Khan saw a tractor driven by Narpat Singh along with a trolley coming from the side of Hotrada Nada towards Ajit and that there were about 50 persons in the trolley. He then met Ridmal Khan at about 3 p. m. who had also seen the tractor coming. It is alleged that Ridmal Khan heard the accused Banshu Khan, Safi Mohd. , Narpat Singh, Bheekh Singh and Mukan Singh saying that this was the opportunity to beat them up and crush them under the tractor. Hearing this exhortation from these persons, all the persons came down from the tractor with lathis and dharias and started beating Neku Khan, Subhan Khan, Akbar Khan, Samad Khan, Ratan Khan and Sadique Khan. Latter Akbar Khan and Neku Khan were crushed under the wheels of the tractor. After this, the trolley which was earlier got separated from the tractor, was again joined to the tractor and Narpat Singh and his party left for Ajit in that tractor and trolley. Later Ridmal Khan, Dalu Khan, Sadique and Kamruddin brought two chhakar-as and carried the injured to the hospital, Samdari. Neku Khan died on the way and Akbar Khan also breathed his last on reaching the hospital. Ridmal Khan then went to the police station, Samdari and lodged the F. I. R. . at 9 p. m. Ridmal Khan was a mate on the work of the road. On this, a case was registered under sections 147, 148, 149, 302, 307 and 325 I. P. C. After due investigations, the police put up a challan against 27 accused persons and they were committed to the Court of the learned Sessions Judge, Balotra camp Barmer, who framed charges under sections 148, 302 or 302 read with 149, 323, 325 and in the alternative u/s 323/325 read with 149 I. P. C. against all of them. The prosecution examined 26 witnesses and produced 132 documents, and 13 material exhibits. The accused denied the prosecution story and alleged that when the accused party had been beaten up by the members of the opposite party on 8. 6. 83, they got a case registered against them with the police and the S. H. O. was to come for investigations in respect of that matter at the spot on 9. 6. 83 an J, therefore, they had also gone to the spot in the tractor. According to them, as soon as the" tractor reached the spot, Neku Khan and others who were armed with lathis, assaulted them and they acted in their right of self defence. They produced three witnesses in their defence and also produced more than 30 documents. After hearing the parties and considering the evidence, the learned Sessions Judge came to the conclusion that the accused party had formed an unlawful assembly. In the first place, the common object of the accused party was to get the work of the road stopped by using force and not to kill Neku Khan or Akbar Khan but after reaching the spot, they saw Neku Khan and Akbar Khan, we had nothing to do with the work of the road and got enraged by their presence and a call was given out that they may be done to death and, therefore, at that stage, the common object of their unlawful assembly turned into the one for causing the deaths of Neku Khan and Akbar Khan and that Neku Khan and Akbar Khan were killed in furtherance of that common object. He further found that there was no right of private defence available to the accused persons because even if they were opposed to the construction of the road as decided by the S. D. O. , they had ample opportunity to take recourse to higher authorities. He was also of the view that as a matter of fact, there was no conspiracy hatched and that Bakhtawar Singh was wrongly implicated by making out the story of conspiracy. He, accordingly, acquitted Bakhtawar Singh. According to him, their was direct evidence of the participation of Bheekhsingh, Mukan Singh, Mag Singh, Kalia Raika, Suja Chaudhary, Aalija, Ratnia, Luku-mdin and Surtu Khan. He also found that injuries to Neku Khan deceased were caused by Banshu Khan, Bheekh Singh, Mukan Singh and Vijai Singh with lathies and that Narpat Singh passed over the tractor over him. He, however, found that Safi Mohd's participation in causing injuries with a Dharia on the head of Neku Khan was not established. So far as the injuries on the person of Akbar Khan are concerned, he found that accused Ramu Ram Choudhary, Rama Bheel, Binjia Bheel and Kheem Singh were responsible for causing injuries with lathis to him. However, later he found that participation of Rama Chaudhary in this incident was not established beyond doubt. As regards the injuries to the persons of the accused, the learned Sessions Judge was of the opinion that it was not specifically proved that the accused persons had received injuries on 9. 6. 83 during this incident and it may be that they had received some injuries during the incident, which had taken place on 8. 6 83. He was further of the opinion that the injuries to the persons of the accused were only superficial and, therefore, the prosecution was not bound to explain those injuries. In the ultimate analysis, he found that the prosecution had not been able to establish the participation of the accused Rama Ram Chaudhary, Gulab Khan, Safi Mohd. , Uka Ram, Dungar Singh, Ridmal Khan and Sanwala Ram. He, therefore, gave them benefit of doubt and acquitted them. He convicted the rest 20 accused u/s 147 I. P. C. but acquitted them u/s 148 as according to him, they were only armed with lathis, which were not deadly weapons. Me also convicted these 20 accused persons u/s 302 read with Sec. 149 I. P. C. He -further convicted them u/s 323 read with 149 I. P. C. and also u/s 325/149 I. P. C. he sentenced all the above 20 accused persons to imrisonment for life u/s 302 read with 149 the above 20 accused persons to imprisonment for life u/s 302 read with 149 I. P. C. He further sentenced them to two years rigorous imprisonment u/s 325 read with 149 I. P. C. along with a fine of Rs. 200/- each in default one month's simple imprisonment. He also sentenced them to six months' simple imprisonment u/s 323 read with Sec. 149 I. P. C. These 20 accused persons were further sentenced to one year's rigorous imprisonment each u/s 147 I. P. C. along with a fine of Rs. 100/-each and in default 15 days simple imprisonment. All the substantive sentences were made to run concurrently. He directed that the tractor Art. A9, Dynamo Art. A10 and Self Art. All shall stand forfeited to the State. Rest of the articles shall be destroyed after the limitation for filing appeal expired. Aggrieved of this judgment of the learned Sessions Judge, Balotra, camp Barmer dated 15. 4. 85, the 20 accused appellants have filed Appeal No. 122/85. Aggrieved of the acquittal of Safi Mohd. the State after obtaining leave to appeal has filed Appeal No. 236/85. Veerma Ram, who alleges to be the owner of the tractor has filed Appeal No. 133/85 against that part of the judgment of the learned Sessions Judge by which the tractor, dynamo and self had been directed to be forfeited. As all these three appeals arise out of the same Sessions Case, we will dispose of all the three of them by a single judgment.
(3.) WE have heard the learned counsel for the appellants and the learned P. P. and have gone through the record. The learned counsel for the 20 appellants has urged that the learned Sessions Judge was wrong in holding that the accused persons were members of an unlawful assembly and had also gone wrong in refusing the right of private defence of their person and property to the accused. According to him, the prosecution story has been wrongly made up by forging the F. I. R. and as a matter of fact, the incident did not take place in the manner alleged by the prosecution but it took place in the manner alleged by the accused. He further urged that even if it is held that the accused had no right of private defence, then it was a case of free fight and the individual accused could have been convicted on the basis of the part played by him but they could not have been convicted by resorting to s. 149 I. P. C. The learned P. P. on the other hand, supported the findings of the lower court. We shall first take up the question as to how the incident took place i. e. whether it had taken place in the manner alleged by the prosecution or not. In this connection, it may be pointed out that the F. I. R. narrates the earlier incident and the coming of the S. D. O. , J. En. etc. on the spot and deciding that the construction of the work should continue and then says that the parties left the spot and went to Ajit in the Panchayat Bhawan where some people had collected. There the Sarpanch told them that the S. D. O. had refused to stop the work and, therefore, they should get that stopped by force of lathis and there after the accused persons came to the spot in the tractor and trolley driven by Narpat Singh. There, they started giving beating to the injured persons on the side of the complainant, namely, Neku Khan, Subhan Khan, Akbar Khan etc. and thereafter Neku Khan and Akbar Khan were crushed under the tractor: Thus, according to this version of the prosecution, the accused persons bad gone to the spot armed with lathis etc. with the intention of giving beating to the complainant party and thereafter also to crush -Neku Khan and Akbar Khan under the tractor. This F. I. R. is alleged to have been lodged at about 9 p. m. but on a careful perusal of the record, it would go to show that this F. I. R. was perhaps not the original information, which had reached the police station. It may be mentioned that the police had started taking action in connection with this incident even before this F. I. R. was recorded; In this respect, it may be pointed out that although the report is alleged to have been lodged at 9 p. m. on 9. 6. 83, it reached the Court on 14. 6 83. The delay is sought to be explained on the ground that holidays had intervened though it is admitted that 10th June, was a working day. The learned Sessions Judge has accepted this explanation for the delay in the F. I. R. reaching the Court but to us, this explanation does not appear to be satisfactory at all. There is absolutely no reason coming forward from the side of the prosecution why the report did not reach the Court on 10th itself, which was admittedly a court working day. Apart from this, even if the 11th, 12th and 13th were holidays in the Court, the F. I. R. could have been presented to the Magistrate even during the holidays and it has not at all been shown why it could not be so presented even during those holidays. It is not also shown as to who had carried the F. I. R. to the court. If that person had been produced, probably the cause of the delay could have been ascertained. ;