R. S. VERMA, J. - (1.) THE prosecution story, as held established by the learned trial Judge is as follows : -
(2.) LUMBA Ram (deceased) and his brother Kirta Ram PW 4 are residents of village Padasala. They have two fields at Padasala, one known as Dhaniwala and the other on the outskirts of the village and at a distance of about 2 kms. from the field known as Dhaniwala. On 11-9-85, at about 4 p. m. , appellant Naina Ram put his 8. 10 cows in the Dhaniwala field of Kirta Ram and LUMBA Ram. At that time, there was a crop of 'bajari' and 'moth' in the aforesaid field. The cows of Naina Ram grazed the standing crop and caused quite some damage to the same. Upon this, Kirtaram and LUMBA Ram, who happened to be there, took the cows out of the field and proceeded to take them to the village cattle pound. On the way to the cattle pound, lay their second field on the outskirts of the village. When these two persons reached this second field with the cattle of Naina Ram, they were all of a sudden accosted by the accused appellants Naina Ram, Lala Ram, Padma Ram, Kumbha Ram, Moola Ram, Gumana Ram, Mst. Roopi and Mst. Mani. They were variously armed with Kassis and lathis. At that time, Chena Ram PW 1 (son of the deceased LUMBA Ram and PW 3 Pami (daughter of said LUMBA) were also in the said field and were busy doing 'nidan' operations (weeding ). The accused persons all of a sudden opened assault upon Kirta Ram and LUMBA Ram and when Chenaram and Pami came near, they Were also assaulted. After the initial assault, LUMBA Ram fell down on the ground and thereafter all the accused appellants gave indiscriminate beating to him on his back with the result that he sustained numerous injuries. Thereafter LUMBAram was taken away to some distance by Naina Ram, Padma Rami Moola Ram, Lala Ram and Kumbha Ram. It is alleged that besides LUMBA Ram, PW 1, Chena Ram and PW 4 Kirta Ram also received injuries in this assault. Leaving Kirta Ram and LUMBA Ram at the spot, Chena Ram and Pami went to Sarpanch Mohan Ram and informed him of this occurrence. Mohan Ram along with one Koja Ram went to the scene of occurrence and Kirta Ram, Chena Ram and Smt. Pami were taken to police station Osian in a tractor. LUMBA Ram was not found at that spot. Kirta Ram lodged a report of this incident at police station, Osian on 11-9-85. at 11. 30 p. m. Upon this report, the S. H. O. made some enquiries from Kirta Ram, Chenaram and Smt. Pami and registered a case under section 307, 341, 323, 447, 147, 148, 149 IPC as also u/s 24 Cattle Trespass Act. Kirta Ram eventually became unconscious and he was sent to the hospital. Likewise, Chena Ram and Smt. Pami were also sent that very night to the hospital where they were examined by Dr. Vijay Kumar Verma PW 22. He found following injuries on the person of Kirta Ram : - - 1. Bruise with diffused swelling with fracture 10 cm x 4 1/2 cm on posterior aspect of left forearm extended from lower of left fore arm to left wrist joint. 2. Bruise diffused swelling ? Fracture 11 cm x 5 cm on posterior aspect of right forearm extending from lower 1/2 of the rt. forearm to rt. wrist joint. 3. Bruise 11 cm x 6 1/2 cm on left shoulder. 4. Incised wound 3 cm x 2 cm x 3/4 cm semi lunar on right knee. 5. Incised wound with diffused swelling 6 cm x 1 1/2 cm x 3 cm obliquely downward on right side of the skulp over right paristal bone situated obliquely 13 cm above from right ear. He prepared report Ex. P 26 in this regard. He, further, examined Smt. Pami and found that she was complaining of pain in the back, but there was no apparent injury on her person. A report Ex. P 28 was prepared in this regard. He found following injuries on the person of Chena Ram : - 1. Bruises with massive swelling 10 x 5 1/2 cm. on left eye conjuc-tive of left lower eye lid a deeply congested ball and vision normal. 2. Bruise with swelling 5 cm posterior aspect of middle forearm. 3. Bruise with swelling 10 cm. on posterior aspect of middle of left eye. " 4. He prepared Ex. P 29 in this regard. It appears that Lumba Ram succumbed to his injuries at a place in the vicinity of the scene of occurrence and the Investigating Officer after complying with the formalities of site inspection etc. , got his dead body examined by Dr. Vijay Kumar PW 22. Dr. Vijay Kumar examined the dead body of Lumba Ram on 12-5-85 and found following injuries on his person: - "1. Abrasion 1" long on anterior aspect of lower 1/2 of right arm. 2. Multiple abrasions 3" x 2 1/2" on right side of the chest 2" below of the right nipple. 3. Abrasion 1/2" x 1/4" on enterior aspect of lower 1/4 of left thigh. 4. Incised wound 1" x. 1/8" x 1/2" on lower part of medial aspect of left knee. 5. Abrasion 1 1/2" x 1/2" on enterior aspect of middle of left leg. 6. Incised wound 1-1/2" x 1/2"x 1/2" bony deep semi lunar on enterior part of middle of scalp 3" above from left eye brow. 7. Incised wound 1/4 x1/2"x1/2" on left shoulder. 5. Multiple abrasion with bruises 8" x2-1/2" on lateral aspect of upper part of left thigh. 6. Multiple abrasion with bruises 5" x 2 1/2" on left hip. 10. Incised wound 1" x 1/2" x 1/2" bony deep on posterior part of left side of scalp 3 1/2" above and posterior to left arm. 11. Incised wound 1" x 1/2" x 1/2" on enterior lateral aspect of left wrist joint. 12.Multiple bruises with abrasions as shown in figure 15" x 18" on whole of the back. " - According to Dr. Vijay Kumar, injury No. 6 on the person of Lumba Ram was grievous. According to him, Lumba Ram had died because of injury No. 12, which consisted of multiple bruises and abrasions on an area of 16" x 18" on whole of the back. The injuries were ante-mortem in nature and injury No. 12 was sufficient in the ordinary course of nature to cause death. Dr. Verm a prepared a postmortem report Ex. P 25 in this regard. Learned trial Judge on the basis of evidence adduced before him, found that appellant Naina Ram committed an offence u/s 24 Cattle Traspass Act by unlawfully putting his cattle in the Dhaniwala field of the deceased and the cattle had done damage to the crop of the deceased. Hence, deceased and Kirta Ram had a right to take the cattle to the cattle pound. He found that the appellants with a view to rescue the cattle formed an unlawful assembly. He therefore, convicted all the appellants of offence u/s 148 I. P. C. He found that Moola Ram and Naina voluntarily caused simple injuries during the assault to Chena Ram and thus committed an offence u/s 323 IPC. He found that Smt, Roopi voluntarily caused simple hurt by a sharp weapon to Kirta Ram on his right knee and thus caused an offence u/s 324 IPC. He, likewise, found that Smt, Mani voluntarily caused grievous hurt to Kirta Ram by a lathi and thus committed offence u/s 325 IPC. He found that Gumana Ram caused grievous hurt to Kirta Ram on head in such circumstances that he should be held guilty of attempting to cause his murder. He further found that Padma Ram caused death of Lumba Ram in this assault by causing injury No, 12. He, found that. Roopi, Mani and Gummna Ram did not participate in the assault on deceased Lumba Ram but rest of the appellants participated in such assault in furtherance of the common object of the unlawful assembly viz, to cause death of Lumba Ram. Consequently, he convicted and sentenced the appellants as stated below. He did not accept the defence theory that Lumba Ram and Kirta Ram had stolen the cattle of Naina Ram and his companions had a right of private defence of property. I Sec. 24 Cattle Traspass Act Naina Ram Rs. 250/- fine default S. I. for one month II Sec. 148 IPC All the appellants One month's S. I. , Rs. 100/-fine default 15 days S. L III Sec. 323 IPC Moola Ram & Naina Probation on bonds of Rs. 1000/- IV Sec. 324 IPC Roopi V Sec. 324/149 I. P. C. All the rest Rs. 250/- fine, default one month's S. I. VI Sec. 325 IPC Mani VII Sec. 325/149 IPC All the rest One year's R. I. Rs. 250/- fine, default one month's S. I. VIII Sec. 307 IPC Gumana Ram IX Sec. 307/149 I. P. C. All the rest Four year's R. I. , Rs. 500/- fine, default two month's S. I. X Sec. 302 IPC Padma XI Sec. 302/149 IPC Naina Ram, Moola Ram, Kumbha Ram, Lala Ram Life imprisonment, fine Rs. 1000/- default four month's R. I. Learned counsel for the appellants in this case has not challenged the fact that an assault did take place upon Kirta Ram, Lumba Ram and Chena Ram but he submits that in this case, the prosecution has come out with a false plea that Naina Ram had put his cattle in Dhaniwala field of Kirt Ram and Lumba Ram and that cattle of Naina Ram had grazed the standing crops in the said field. He submits that the true fact was that Lumba Ram and Kirta Ram had forcibly stolen the cattle of Naina Ram from the possession of his son Shanwarlal DW 1 and were illegally taking them to cattle pound and when the accused persons learnt of this theft, they went to rescue their cattle upon which a fight ensued and hence accused persons were entitled to assault Kirta Ram, Lumba Ram and Chena Ram in exercise of right of private defence of their property. His submission is that in the aforesaid circumstances, learned trial court was not right in finding that the accused persons had formed any unlawful assembly from the beginning. His submission is that the appellants might have exceeded their right of defence of property in causing injury No. 12 to Lumba Ram after he had fallen to the ground, hence, they could have been found guilty at best of offences under sections 148 304 Part II IPC but the learned trial court went wrong in convicting the appellant Naina Ram of offence under section 24 Cattle Trespass Act. He went wrong in convicting appellants Moola Ram and Naina Ram for offence under sec. 323 I. P. C. He further went wrong in convicting Smt. Roopi u/s 324 IPC. He further went wrong in convicting Smt. Mani of offence u/s 325 IPC. He likewise, completely went wrong in convicting Gumana Ram of an offence u/s 307 IPC and of convicting Padma Ram of an offence u/s 302 I. P. C. Likewise, the learned trial court fall in error in convicting the appellants other than Smt. Roopi of offence u/s 324 read with 149 IPC; appellants other than Smt. Mani of offence u/s 325 read with 149 IPC; appellants other than Gumana Ram for an offence u/s 307 read with 149 IPC and appellants other than Padma Ram,roopi, Mani and Gumana Ram. of offence u/s 302 read with 149 I. P. C.
(3.) LEARNED P. P. tried to support conviction of Naina Ram for offence u/s 24 Cattle Trespass Act and further tried to support the judgment of the learned court below on other scores as well. In view of the limited questions raised before us, we need not encumber this judgment by describing the various details of the investigative process or by other material not garmane to the decision of question before us. After having heard both the sides including the learned counsel for the complainant, we find that - the first and foremost question, which ought to engage 'our attention is whether the accused Naina Ram had at all committed an offence u/s 24 Cattle Trespass Act and had committed trespass in the field of Dhaniwala of Kirta Ram and Lumba Ram and had caused damages to their crop or the cattle of Naina Ram had at all strayed into the field of Kirta Ram and Lumba Ram and had caused such damage. The lone and principal prosecution witness on this score is PW 4 Kirta Ram himself. In his examination-in-chief, he has deposed that on the fateful time he along with his brother Lumba Ram was doing nidan' in the Dhaniwala field. There was a crop of 'bajara' and 'moth' in the field. Naina Ram put 8 10 cows in the field and the cows started grazing the crop, upon which, he along with Lumba Ram started with the cows for the cattle pound. In cross-examination, he gave a complete go bye to this story and stated that the cattle of Naina Ram were put in the field by some children. On further cross examination, he states that there was only one child with the cattle and that was son of Moola Ram. When further cross examined, he stated that he did not remonstrate the child because the child had put the cattle in the field from a distance of 1 km. To say the least, this statement is*absolutely unworthy of credence and does not inspire any confidence. It may be stated that Kirta Ram has vaguely stated that the cows had started grazing the crop. He has not stated the extent of the less to the crop at all. Here, it may be recalled that this witness was examined during the course of investigation u/s 164 Cr. P. C. That statement is Ex. 4. It is curious that in Ex. D 4. he did not given even a faint suggestion that cattle of Naina Ram. were put in his field or had strayed in to the field known as Dhaniwala. He states that he did not depose about this fact before the Magistrate in Ex. D 4 because the Magistrate had not enquired from him about the same. This explanation is not at all convincing and cannot be accepted. The only other person, who is said to have seen this part of the incident is Smt. Jiya and it was at her instance that the Investigating Officer is said to have inspected the field known as Dhaniwala. Smt. Jiya has not been examined to support the story put by Kirta Ram and the only inference is that had she been produced, she would not have supported the prosecution story. ;