MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 17. 12. 92 passed by the Special Judge SC/st Court, Udaipur in Sessions Case No. 5/92 convicting the appellants of offence under Sec. 302/149 I. P. C. and sentenced each of them to undergo imprisonment for life and in default of payment to further undergo two months R. I.
(2.) THE appellant Jeeva and his sons namely Munshi aged 21 years, Prabhu aged 19 years and Shambhu aged 17 years were put to trial before the Special Judge SC/st Court, Udaipur on the charge of murder of Laxman and Valji. THE 5th accused Dhanji being a juvenile was separately tried by the Juvenile Court. The prosecution case in brief is that on 6. 11. 91 at about 8. 30 p. m. PW/5 Nanaji submitted a written F. I. R. Ex. P/12 in village Javla before the S. H. O. , Police Station, Gordhan Villas stating inter-alia that in the morning at about 7 PW/2 Deva and PW/3 Mohan came to his son Laxman (deceased) and asked him to go to the house of Ward Panch for celebrating Diwali festival. At that time Valji (deceased) also arrived there. Thereafter Deva, Mohan, Laxman and Valji all the four left for the house of PW/6 Ward Panch, Nathu. At about 11 a. m. his younger son Babu informed him that the accused Jeeva, Prabhu, Manshi, Shambhu and Dhanji have beaten Laxman and Valji in the `khalian' and killed them. On this Deva went to the `khalian' where the dead bodies of deceased Laxman and Valji were lying. Deva, Mohan and PW/4 Soma were sitting beside the dead bodies. They disclosed that all the 5 accused persons armed with `kulhari', `lathi' and stones arrived there and assaulted Laxman and Valji. Jeeva was armed with `kulhari' and `churri'. He caused injuries to both the deceased persons. The accused Prabhu and Shambhoo were armed with lathis. The accused Dhanji and Prabhu assaulted them by stones. He also stated that there was dispute between the parties with respect to the certain land. On this information, Police registered a case for offences under Sections 147, 148, 149 and 302 IPC. PW/8 Mool Chand Vishnoi, S. H. O. , Police Station, Gordhan Vilas took up the investigation. The Police held the inquest and arranged post-mortem of the dead bodies of the deceased Laxman and Valji. Recoveries of weapons were made in pursuance of the information given by the accused persons. After usual investigation, Police led charge-sheet against the accused persons of offence under Sec. 302/149 and 148 IPC. The accused appellants denied the charge and claimed trial. The prosecution in support of the case examined as many as 11 witnesses and produced number of documents. The accused Jeeva in his statement under Sec. 313 Cr. P. C. stated that he alongwith his sons was at his house. The deceased Laxman and Valji alongwith their associates attacked on their house, they put fire to their house and created a situation that if they would not have run away, they would have been killed. He also stated that arrows of the aggressors hit Laxman and Valji causing their death. Accused Jeeva appeared in the witness box as DW/1. All the accused persons have made almost same statement. We have heard Mr. A. K. Acharya, learned counsel appearing for the appellants and the learned Public Prosecutor. We have also perused the record carefully. The prosecution has examined PW/2 Deva and PW/3 Mohan as eye witnesses. PW/2 Deva stated that on the next day of Diwali of the preceeding year at about 11 a. m. while he was at his house, Mohan arrived and asked him to go to the house of Laxman. Thereafter they wen to the house of Laxman. From there he returned to his house alongwith Valji, Laxman, Babu and Mohan. While they were preparing to proceed towards the house of Ward Panch, Nathu, the accused Jeeva, Manshi, Shambhoo, Prabhu and Dhanji arrived. They started hurling stones. The accused Manshi and Shambhoo caught hold Laxman. Jeeva gave a `kulhari' blow on the head of Laxman and Jeeva thereafter took out `churri' and stabbed in the back of Laxman. On account of which Laxman fell down. Prabhu and Dhanji caught hold Valji. Jeeva attacked on Valji twice by `churri'. He also stated that Valji and Laxman succumbed to the injuries on the spot. PW/3 Mohan stated that he alongwith Deva had gone to the house of Nana. At the house of Nana, Valji and Narayan were also there. From there, he alongwith Laxman, Valji, Narayan and Babu went to the house of Deva. In the house of Deva, the accused persons were sitting concealed in the `khaliyan'. The accused Jeeva, Manshi, Shambhoo, Prabhu and Dhanji came out. The accused Jeeva was armed with `kulhari' and `churri'. The accused Shambhoo and Manshi were carrying lathis in their hands. Prabhu and Dhanji were carrying stones in their hands. They started hurling stones. Valji sustained stone injury on the leg. The accused Manshi and Shambhoo caught hold Laxman. The accused Jeeva gave a `kulhari' blow on the head of Laxman. The ac-cused Jeeva also stabbed by Churri on the back of Laxman. Thereafter, Dhanji caught hold Valji. They tried to separate them. Jeeva snatched `kulhari' from the hands of Valji and inflicted injury by the handle of `kulhari' on elbow. Jeeva stabbed twice by `churri' at the back of Valji. Pw/4 Soma stated that hearing the voice of Deva, he went to his house. He saw that accused Jeeva and all his sons were leaving the house of Deva. On enquiry, Mohan disclosed that Jeeva and his all sons have killed Valji and Laxman. The dead bodies of Laxman and Valji were lying in the `khaliyan'. He also stated that Ward Panch, Nathu went to inform the Police. Thus, this witness is not an eye witness but he reached on the spot just after the incident had taken place.
(3.) PW/5 Nana stated that on the next date of the last Diwali at about 6 a. m. Mohan, Deva, Valji and Narayan came to his house and asked to him to go to the house of Ward Panch, Nathu. Thereafter Laxman, Babu, Deva and Mohan left house. At about 11 a. m. his son Babu informed him that Valji and Laxman have been killed by the accused Jeeva, Manshi, Prabhu and Dhanji. Thereafter, he went to the house of Deva and found that the dead bodies of Laxman and Valji were lying. There was stab wound caused by `churri'. Their cloths were smeared with blood. He also stated that Deva, Mohan, Narayan and Soma were sitting on the spot. On enquiry, they disclosed that while they were chewing tobacco, Jeeva and all his four sons committed the said incident. He also stated that land of Narayan was in their possession. The accused persons had cut the trees and taken away. Except the said minor dispute, there was no other major dispute with the accused persons. He also stated that Nathu was sent to inform the Police about the said incident. He also proved various memos prepared by the Police as panch witness. Pw/6 Nathu is a witness of various memos prepared by the Police. In the cross examination, he admitted that he is a Ward Panch. He also stated that there was enmity between the parties for the last one year. When he reached on the spot, he found both the dead bodies of Laxman and Valji lying. He had seen injuries on dead bodies. He also stated that he had gone to the Police to inform about the incident. The S. H. O. had written the information on a slip. However, he did not ob-tain his thumb mark on the said slip. He also admitted that the entire house of accused Jeeva had fallen and was completely burned. Pw/1 Gautam is a motbir of various police memos. Pw/7 Kanhaiyalal and Pw/11 Babu Lal are the formal police witnesses. Pw/8 Moolchand Vishnoi, S. H. O. , Police Station, Gordhan Vilas has given all the details of the investigation. He stated that Nanaji had submitted a written F. I. R. in the village Javla. He inspected the site and prepared the site inspection memo. He has also stated that in pursuance of the information given by the accused persons, different weapons of offence were recovered. In the cross-examination, he has admitted that the houses of the accused persons were completely burned but they could not know who had burned those houses. ;