S.S.BYAS, J. - (1.) ACCUSED Dhanna Lal and Babu Lal have been convicted Under Section 302, IPC and each has been sentenced to imprisonment for life with a fine of Rs. 1,000/ -, in default of the payment of fine to further under go six months' simple imprisonment by the learned Sessions Judge, Jhalawar by his judgment dated November 23, 1987. The accused have come up in appeal and challenge their conviction.
(2.) STATED in short, the prosecution case is that DW 1 Smt. Bhanwari Bai was a Khatedar tenant of some fields situate in village Kollu Khedi PS Jhawar, District Jhalawar. She sold her Khatedari in some of these fields to PW 1 Ismail Khan and his deceased brother Umrao Khan along with two or three persons on 6 -7 -1985 by executing the registered sale -deed Ex.P 28 in their favour. Possession of the fields were handed over to them by Smt. Bhanwari Bai on the same day. At about 3.00 or 4.00 p.m on 19 -7 -1985 PW 1 Ismail went to these fields and found the appellants Dhanna Lal and Babu Lai ploughing a portion of 13 Biswas. Many other persons viz. Harak Chand, Nathu Lal, Ratan Lal, Maugilal Bhanwarlal, another Ratanlal Nannu Lal. Gangaram and Mathura Ram were also there. They all had deadly arms with them. The two appellants had Swords. Seeing them there, Ismail Khan went to the village and collected some persons. He told them that the accused party was illegally sowing the seeds in the portion of 13 Biswas. These persons along with Sarpanch Ismail PW 5 came to the place where the appellants were sowing the seeds. The Sarpanch told the appellants and their companions that the fields had purchased by Ismail Khan PW 1. This annoyed and irked the appellants. Appellant Babu Lal shouted that none should be spared. Thereupon appellant Dhanna Lal struck a blow of his sword on the head of Umrao Khan Accused Babu Lal also struck one blow with his sword on the mouth of Umrao Khan. Umrao Khan fell down. There was profuse bleeding from his wounds and the clothes he was wearing got smeared, with it. Ismail Khan (PW 1), Mosam Khan and Isan Khan tried to save Umrao Khan. The appellants and their companions did not spare even these three persons and belaboured them. Thereafter the appellants and their companions named above retreated and went towards the village. Umrao Khan became unconscious on the spot He was taken in a bullock cart to Police Station Jhawar where PW 1 Ismail Khan lodged verbal report Ex.P 1 of the incident. The Police registered a case Under Sections 307, 148 etc. of the Penal Code and proceeded with investigation. The condition of Umrao Khan was rapidly deteriorating and he was taken to the Government Hospital, Jhalawar for treatment. His condition did not improve and he was taken to the General Hospital, Kota where he was admitted for treatment. Despite medical help Umrao Khan did not survive and breathe his last on 26 -7 -1985. The Police added Section 302 IPC during investigation. The Investigating Officer visited the site and prepared the site plan. The inquest report of the victim's dead body was prepared. The post mortem examination over the victim's dead body was conducted on 26 -7 -1985 by Medical Jurist Dr. Vijay (PW 16). The Doctor noticed the following ante -mortem injuries on the victim's dead body: External: 1. Wound 6' long vertically oblique on right fronto parietal temporal region of scalp. 2. Wound 2 -1/2' long oblique just below lower lip. Internal: Fracture of right fronto temporal parietal bone of scull. In the opinion of Dr. Vijay, the cause of death was due to come as a result of head injury. The post mortem examination report issued by him is Ex. P 30. The injuries Ismail Khan, Isan Khan and Mosam Khan were examined on 19 -7 -1985 by PW 4 Dr. Jogendra Pal Singh, the then Medical Officer Incharge, Government Dispensary, Jhawar. Simple injuries were found on their persons. The injury reports are Ex.P -5, Ex, P -6. Doctor Jogendra Pal Singh also recorded the statement Ex. P -8 of Umrao Khan on 19 -7 -1985 when he was taken to him. The appellants and their associates, were rounded up. The blood stained clothes etc. were sent for chemical examination to Rajasthan State Forensic Science Laboratory, Jaipur. The report received from there is Ex. P -31 Human blood was found on them. On the completion of the investigation, the Police presented a crime report against as maay as 11 accused person viz. Harak Chand, Nathu Lal, Ratan Lal, Mangi Lal Bhanwar Lal, another Ratan Lal, Nannu Lal Ganga Ram, Mathura Lal and the two appellants Dhanna Lal and Babu Lal in the court of the Judicial Magistrate, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charged Under Sections 302, 302/149, 148, 324 and 324/149 IPC against all of them, to which they pleaded not guilty and faced the trial. The defence taken was that the field in depute Where the incident allege to have taken party came their possession and cultivation since long. The members of the complaint party come there on the day of incident to unlawfully and forcibly dispossess them. They denied that they used violence against any member of the complainant party. In support of its case, the prosecution examined 16 witnesses and filed some documents. In defence, the accused examined one witness Bhanwari Bai (DW 1). On the conclusion of trial, the learned Sessions Judge held that the field in which the, incident took place was in possession and cultivation, of the appellants. But there was no occassion to exercise the right of private defence of property. The learned Sessions Judge further held that there was no incriminating material against the six accused persons Mangi Lal Bhanwar Lal, Ratan Lal, Nannu Lal, Ganga Ram and Mathura Lal. They were accordingly acquitted of the offence they were charged with. The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. They were also acquitted of the offence Under Section 302 or 302/149 IPC. The Sessions Judge held the charge Under Section 302 IPC duly brought home to the appellants Dhanna Lai and Babu Lal. They were consequently convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction, Dhanna Lal and Babu Lal have taken this joint appeal
(3.) WE have heard Mr. A.K. Gupta -learned Counsel for the appellants and the learned Public Prosecutor, Mr. O.P. Sharma. We have also gone through the case filed carefully.;