PALSHIKAR, J. - (1.) BY this appeal Mangla Ram and others have challenged their conviction under Sec. 302,i. P. C. for murder of Umaram Criminal Appeal No. 238 of 1997 is filed by the State of Rajasthan against the acquittal of Mangla Ram for offence under Sec. 307, I. P. C. for attempting to murder Brijlal and Criminal Revision No. 375 of 1995 is filed against the acquittal of Mangla Ram u/sec. 307, I. P. C.
(2.) THE facts giving rise to the appeals as aforesaid, stated briefly are that in the morning of 31. 7. 94 the complainants went to their field early in the morning when they were assaulted by the accused persons who were duly armed. The assault resulted in the death of Umaram and hurt to Brijlal son of Umaram. It is alleged that the quarrel took place on account of the dispute over possession of certain agricultural land which were initially allotted to one Motiram, father of Umaram and Manglaram. In fact Umaram and Manglaram are the real brothers and the dispute is regarding proprietary rights and possession of certain immovable properties initially belonging to Motiram. After the report as aforesaid was lodged, investigation was taken up and the accused persons after being arrested were duly prosecuted and on appreciation of the oral and documentary evidence as was led by the prosecution, the learned Sessions Judge came to the conclusion that the accused were guilty of murdering Umaram and causing hurt to Brijlal. The learned Judge however found that there is no evidence sufficient for conviction of the accused persons under Sec. 307, I. P. C. for attempting to commit murder of Brijlal. Accordingly, he has acquitted the accused of the charge under Sec. 307, I. P. C. the above appeals as stated earlier have been filed by the concerned parties. In view of the fact that all the appeals and revision raise question of appreciation of evidence arising out of the same incident and the same judgment is impugned the cases are being disposed of by common judgment. Shri H. S. Kharlia learned counsel appearing on behalf of the accused has assailed the order of conviction on several grounds. According to the learned counsel the quarrel has taken place because of the family dispute over immovable property and the complainant party was the aggressor and, therefore, the finding of guilt is, unsustainable in law. Secondly, the prosecution has failed to explain injuries on the person of the accused and this failure is fatal to the prosecution. It was then contended that there is definite improvement in the depositions of the eye witnesses who have attempted to improve the prosecution by attributing particular weapon to a particular accused and have subscribed definite role to each accused with the arm that he is said to have possessed at the time of the assault and, therefore, the prosecution story is wholly unreliable and consequently the order of conviction cannot be sustained. In any event it is a case of free fight in which the aggressor party is obviously that the of complainant and consequently the accused have exercised their right of private defence to person and property and therefore, in such a case the order of conviction is liable to be set aside. The learned Public Prosecutor has supported the judgment and has contended that the improvements, if any, are not such as would vitiate the trustworthiness of the prosecution evidence and consequently the finding of the learned Judge are not liable to be set aside. Even if the prosecution has not satisfactorily explained the injuries on the person of the accused the explanation as is put forth by P. W. 2 and P. W. 3 is enough and it does establish that the accused were the aggressors. He, therefore, requested for affirmation of the order. With the assistance of the learned counsel for the parties, we have gone through the record of the case and have re-appreciated the evidence on record and have re-scrutinised the entire case. The prosecution has examined as many as 11 witnesses whereas the defence has examined one witness in support of the claim of the accused persons. The accused have in their statement under Sec. 313, Cr. P. C. have stated that they were in rightful possession of the property in question and they were cultivating the same when they were assaulted by the complainant party led by Umaram and others and they have exercised their right of self defence. In view of the stand taken by the accused persons u/sec. 313, Cr. P. C. and in view of the evidence as is led by 11 witnesses of the prosecution and one witness of the defence that there was fight between the complainant party and the accused party that it resulted in homicidal death of Umaram and causing injuries to Brijlal. It also resulted in injuries being caused to persons of Manglaram and Devilal and consequently, there is no dispute as regard the quarrel and fight that took place on 31. 7. 94. There is, therefore, no need for re-appreciation and re-statement of the re-appreciated evidence in extenso as those findings are liable to be maintained. On the re-appreciation of this evidence we are of the opinion that the question that is required to be determined in the facts and circumstances of the case is, who was the aggressor and whether the findings of the learned Judge in this regard are correct. We have the evidence of P. W. 1 Bhagirath , P. W. 2 Brijlal who was injured himself, P. W. 3 is the Doctor who examined P. W. 2 certifying that there is no head injury caused to the witness. P. W. 1 is the adjoining field owner and was natural eye witness to the entire incident. He has proved first information report that was lodged by him (Ex. P/1 ). He names all the accused persons and described the weapons possessed by each of them and spells out user of the weapon by each accused. He then deposes accused Mangla chasing Birja and assaulting him. He his admittedly an independent witness and was naturally present in his field and has seen the entire incident as a stranger but only witnessed. In his cross examination he has admitted that earlier Sahibram , another son of Umaram had also came in the field with Umaram and Brijlal and ran away when the assault commenced to come back with his mother Jadawali and sister-in-law Draupadi. There is nothing in his cross examination as would warrant his independent testimony being ignored. He, therefore, proves the assault on Umaram and Brijlal and his evidence constitutes major independent evidence for coming to the conclusion that the accused party were the aggressor party.
(3.) P. W. 2 Brijlal is the injured witness who names all the accused persons and describe the weapon in their hands and tells very accurately who hit whom and with what weapon. He also given explanation of the injuries caused to the accused persons. The testimony of this witness is also like other relations. Evidence of P. W. 4 Jadawali, and P. W. 5 Draupadi have been severely criticised by the learned Judge for the improvements made by the witnesses. Neither in the first information report nor in the statements recorded under Sec. 161, Cr. P. C. it was stated by these persons that each of the accused persons possessed what arm and hit whether the deceased Umaram or the injured Brijlal. It was, therefore, canvassed before us that in view of the serious improvements made by the witnesses in relation to the weapon their entire testimony is liable to be rejected. Admittedly, according to the defence the complainant party was aggressor and, therefore, disbelieving the evidence of these persons the order of acquittal should follow. We have gone through the depositions of P. W. 2, P. W. 4, P. W. 5 and P. W. 6. We have re-appreciated their statements and we have no hesitation in holding that each of these witnesses have tried to improve the prosecution case by ascribing definite role to each accused with a definite weapon and it is a clear case of little improvement in the prosecution case, but in our opinion such improvements is natural as they were deposing in relation to an incident in which they lost a family member. But the nature of improvement if properly appreciated would show that the purpose of improvement was not to implicate the accused persons but to explain the prosecution case. P. W. 2 Brijlal has said:- ....Vernacular Text Ommited.... This is undoubtedly is attempt to explain the injury to the accused person and it is alleged that the same have been caused by the accused persons themselves. Had the witness attempted to improve his case for implicating the accused persons he would be further explaining the injury caused to Manglaram in his chest but that is not done. The witness has stated that Devilal hit his father Manglaram by Barcha. He has stated that this occurred when Manglaram and Devilal were following the accused. If this is so, and the accused avoided the blow of Barcha, it would hit Manglaram in the back and not in the front or chest as has happened. But the witness has not proceeded to explain the injury by saying that he lodged the blow and Manglaram turned round to see what happened and was injured by the Barchi advanced by Devilal. No such attempt or improvement is made. The injuries on the person of the accused reveal that the witness has sought to improve his case only in relation to himself. ;