Rajasthan High Court - Jaipur
Pahar Singh And Ors. vs State Of Rajasthan on 14 October, 1998
Equivalent citations: 1999CRILJ1150
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT A.S. Godara, J.
1. This appeal is directed against the judgment and order dated 23/24-7-1981 passed by learned Sessions Judge, Jalore in Sessions Case No. 58/80. The learned Sessions Judge, after completion of trial, vide his impugned judgment and order convicted and sentenced the accused-appellants Nos. 1 to 7 as under:
1) Pahar Singh Under Section 302 IPC Sentenced to life imprisonment and, fine of Rs. 1000/- and, in default of payment of fine, to further undergo one year's rigorous imprisonment. Under Section 302/149 IPC Life imprisonment of and fine Rupees 1000/- and, in default of payment of fine, to further undergo one year's rigorous imprisonment. Under Section 325/149 IPC Three years' rigorous imprisonment and a fine of Rs. 300/-and, in default of payment of fine to further undergo four months' rigorous imprisonment. Under Section 323 IPC Three months' simple imprison- ment and fine of Rs, 100/-and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 323/149 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 147 IPC Three months' simple imprison- ment and fine of Rs. 100 and in default of payment of fine to further undergo 15 days' simple imprisonment. 2) Bhav Singh Under Section 302 IPC Sentenced to life imprisonment and fine of Rs. 1000/- and in default of payment of fine to further undergo one year's rigorous imprisonment. Under Section 302/149 IPC Life imprisonment and fine of Rupees 1000/- and in default of payment of fine to further undergo one year's rigorous imprisonment. Under Section 325/149 IPC Three years' rigorous imprison- ment and a fine of Rs. 300/- and in default of payment of fine to further undergo four months,' rigorous imprisonment. Under Section 323 IPC Three months' simple imprison- ment and fine of Rs. 100/-and in default of payment of fine to further undergo 15 days simple imprisonment. Under Section 323/149 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 147 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. 3) Jog Singh Under Section 302/149 IPC Life imprisonment and fine of Rupees 1000/- and in default of payment of fine to further undergo one year's rigorous imprisonment. Under Section 325/149 IPC Three years' rigorous imprison- ment and a fine of Rupees 300/- and in default of payment of fine to further undergo four months' rigorous imprisonment. Under Section 323 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 323/149 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 147 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. 4) Chandan Singh Under Section 307 IPC Five years RI and fine of Rs. 700/- and in default of payment of fine to further undergo five months' rigorous imprisonment. Under Section 325 IPC Three years' RI and fine of Rs. 300 and in default of payment of fine to further undergo four months' rigorous imprisonment. Under Section 325/149 IPC Three years' rigorous imprison- ment and a fine of Rs. 300/- and in default of payment of fine to further undergo four months' rigorous imprisonment. Under Section 323 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 323/149 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 147 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. (5) Asu Singh Under Section 307/149 IPC Five years' R.I. and fine of Rs. 700/- and in default of payment of fine to furthere undergo five months' rigorous imprisonment. Under Section 325/149 IPC Three years' rigorous imprison- ment and a fine of Rupees 300/- and in default of payment of fine to further undergo four months' rigorous imprisonment. Under Section 323 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 323/149 IPC Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 147 Three months' simple imprison- ment and fine of Rs. 100/- and in default of payment of fine to further undergo 15 days simple imprisonment. 6) Man Singh Under Section 325 IPC Three years' rigorous imprison- ment and a fine of Rupees 300/- and in default of payment of fine to further undergo four months' R.I. Under Section 325/149 IPC Three years' rigorous imprison- ment and a fine of Rupees 300/- and in default of payment of fine to further undergo four months' rigorous imprisonment. Under Section 323 IPC Three months' simple imprison- ment and fine of Rs. 100/- in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 323/149 IPC Three months' simple imprison- ment and fine of Rs. 100/-in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 147 IPC Three months' simple imprison- ment and fine of Rs. 100/- in default of payment of fine to further undergo 15 days' simple imprisonment. 7. Moti Singh Under Section 325 IPC Three years' rigorous imprison- ment and a fine of Rs. 300 and in default of payment of fine to further undergo four months' R.I. Under Section 325/149 IPC Three years' rigorous imprison- ment and a fine of Rs. 300/- and in default of payment of fine to further undergo four months' rigorous imprisonment. Under Section 323 IPC Three months' simple imprison- ment and a fine of Rs. 100/- in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 323/149 IPC Three months' simple imprison- ment and fine of Rs. 100/-in default of payment of fine to further undergo 15 days' simple imprisonment. Under Section 147 IPC Three months' simple imprison- ment and fine of Rs. 100 in default of payment of fine to further undergo 15 days' simple imprisonment.
Substantive sentences of all the appellants were ordered to run concurrently.
2. As regards appellants Nos. 8 to 21, they were convicted under Sections 325/149, 323, 323/149 and 149, I.P.C. and, at the same time, they were acquitted of the offence under Sections 302/149 and 307/149, I.P.C. However, after their conviction, as above, the learned trial Judge instead of sentencing them immediately, extended benefit of Probation of Offenders Act and ordered their release on probation of good conduct and keeping peace for a period of three years on their execution of a bond in the sum of Rs. 3,000/- and a surety bond in the like amount.
3. By the same judgment and order, learned trial Judge acquitted the accused Bhoor Singh, Hanjiya, Pabu Singh, Gulab Singh, Durjan Singh, Chatra, Janiya, Soniya, Jhepa, Kesiya and Kevada of offence under Sections 147, 302/149, 307/149, 325/149, 323 and 323/149, I.P.C. However, as regard the order of acquittal of aforesaid accused persons, the State has not preferred any appeal against their acquittal and so far as accused persons who have been acquitted as above for alleged commission of offence for which they were tried by the trial Court, their acquittal has become final.
4. However, the appellants being aggrieved by the aforesaid judgment and order have preferred this appeal as above.
5. Briefly slated the facts for the purpose of disposal of this appeal, on being summarised are as under :
6. The appellants are residents of village Nagani of Distt. Jalore, Kheta (deceased) as well as Amba (PW 2), Roopa (PW 3), Samrath Singh (PW 4), Bhora (PW 5), Bagia (PW 6), Ukia (PW 7), Jagta (PW 8), Varda (PW 9), Gamna (PW 10), and Jawan Singh (PW 11) are residents of village Deegaon. The agricultural fields of these persons popularly known as Tokaniwala is situated in the territory of village Bhetala. PW 9 Varda accompanied by the injured witnesses, who is son of Kheta (deceased) lodged report (Ex. P/2) with Bakhtawar Singh, Station House Officer, Police Station, Bagra on 12-8-80 at 5.00 PM alleging therein that a public way from village Deegaon to their fields situated in village Bhetala passes through the fields of appellants Pahar Singh, Bhav Singh, Balwant Singh, Vad Singh, Punama Ghanchi etc. situated in the territory of village Nagani falling in between the villages Deegaon and Bhetala. The villagers of Deegaon whose fields are so situated in village Bhetala have been using the aforesaid public way passing from the fields of aforesaid accused persons from the time immemorial. However, sometime preceding the incident which took place on 12-8-80 itself at about 1.00 PM, the aforesaid accused and their associates through whose fields, the way from Deegaon to their fields in Bhetala is situated, started raising obstructions in the way thereby attempting to restrain them from passing through the way whereas there was no convenient alternative way to go to their fields and return to their village Deegaon.
7. Sometime before this incident, the aforesaid accused Pahar Singh etc. had closed the way passing from their fields and as a result, Kheta reported this matter through the Collector, to the Tehsildar who enquired into the matter and, after hearing claims of both the sides, ordered for opening of way by clearance of obstruction raised thereon and, accordingly, the obstructions were removed and the aforesaid agriculturists of village Deegaon including Varda, Kheta etc. started going and coming through the aforesaid public way to their fields situated in village Bhetala. About 4-5 days prior to the date of incident, the aforesaid Khatedars and cultivators of fields falling in the village Nagani dug ditches on the way obstructing the same. On the fateful day, Kheta accompanied by PW 2 to PW 13 and Chena started from their village Deegaon for their fields in village Bhetala through the aforesaid way, but on their arrival, they found that Pahar Singh, Bhav Singh, Punama, Bheek Singh, Balwant Singh etc. had so dug ditches and put long plants on the same causing obstruction on the way. However, Kheta and his associates removed the bushes/thorny plants etc. and filled up ditch with sand and removed the bushes/thorny plants etc. and after clearing the obstructions so caused on the land of way, they went to their fields in village Bhetala. After doing needful and having taken rounds of their fields, at about 1.00 p.m., Kheta and his associates including Varda started for their village Deegaon through the aforesaid way. ' They had two bullock carts with them. When they were passing from the way passing through the field of Bhima Ganchi, which was being cultivated by Tikama Ganchi, all the accused persons, presently appellants, and all those who have been acquitted after the trial, being armed with lathi forming an unlawful ass6mbly, were present in the field of Bhima. When they were passing by their side towards village Deegaon, Pahar Singh hurled vulgar abuses at Kheta and challenged him as to why did he clear the obstructions raised in his field on the land of disputed way. Kheta replied that it was the Government which had given them a right of way on the disputed land which also passed through his field and so they passed from the way. Pahar Singh immediately gave a forceful lathi blow on the head of Kheta, as a result of which, his turbon was thrown off to the ground. Bhav Singh gave another blow of Jathi on the head of Kheta and Kheta fell down. Bhoor Singh inflicted lathi blow on the left hand and arm of Kheta. Pahar Singh and Bhav Singh inflicted repeated lathi blows on his ribs and, thereafter, all the other accused persons also started assaulting all the persons accompanying Khela as a result of which Amba, Roopa, Samrath Singh, Bhura, Bagia, Ukia, Jagta, Varda, Gamna and Jawan Singh (PW 2 to PW 11) were injured. Out of them. Amba and Jawan Singh received grievous injuries while rest of the injured persons received simple injuries. Kheta, due to multiple injuries, became unconscious on the spot. Amba, also became unconscious due to injuries inflicted by the accused persons. Thereafter, all the assailants fled away towards the village Nagani. Shrinath Singh, immediately, went to the village Deegaon and brought bullock cart of Varda on the spot. They physically lifted both Kheta and Amba and put them on the bullock cart, Varda and his associates carrying injured persons on the cart left towards village Bagra to report the incident to the police. However, after covering a distance of 3-4 fields, Kheta succumbed to his injuries and hence the cart on which the dead body was lying, was left in the village Deegaon and another bullock cart was procured on which all the injured person were seated and they headed towards the police station Bagra whereat the report was lodged by Varda Ram.
8. Bakhtawar Singh (PW18) on the basis of aforesaid report, registered FIR No. 31/80 under Sections 147, 148, 302, 323 read with Section 149, I.P.C. and commenced investigation.
9. He inspected injuries of all the injured witnesses and prepared their injury reports Ex. P-33 to Ex. P-42. All the injured persons were referred to the Government Hospital, Bagra for examination of their injuries and treatment.
10. Dr. Om Prakash Sharma, (PW 17) Medical Officer, Govt. Hospital, Bagra inspected injuries of injured persons i.e. Amba, Roopa, Samrath Singh, Bhuria, Bagia, Ukia, Jagta, Varda, Gamna, and Jawan Singh which are detailed in Exs. P-20, 26, 25, 29, 23, 27, 30, 31, 28 and 22 injury reports respectively.
11. Since some of the injuries of Amba (PW 2) and Jawan Singh (PW 11) were suspected to be grievous, accordingly, they were referred for X-ray of their injured parts of the body to the Govt. Hospital, Jalore whereat Dr. Rajendra Prasad Purohit, (PW 16), Medical Jurist, arranged for their X-rays. Dr. Rajendra Prasad on examination of X-ray report of Amba found, as per Ex. P-11, that metacarpal bone of left little finger was fractured. Similarly on the basis of findings of X-ray plate, Ex. P-12, it transpired that right rib of Amba was also fractured and, as a result, both the injuries, as per findings given in Ex. P-14, were opined to be grievous in nature.
12. Similarly on the basis of X-ray report of Jawan Singh, it was found that his fronto parietal bone was fractured and so also there was fracture of ulna bone of left hand at its midshaft region and so both the injuries of Jawan Singh were found to be grievous.
13. Dr. Omprakash (PW 17), on 13-8-80, conducted post-mortem of the dead body of Kheta, as per Ex. P/32 PMR, in the outskirt of village Deegaon itself and he found the following external injuries on the dead body :
Wound :
1. A lacerated wound 2.5 cms. x 0.5 cm x bone deep oblique in direction in parieto occipital region of left side.
2. A lacerated wound, oblique in direction 4 cm x 0.4 cm x bone deep in right parietal region 2 cm away from right parietal side.
Bruises:
1. A bruise transverse in direction on lateral side of left arm 9 cm x 3 cm in size 10.5 cm away from lateral epicondye of left humerus.
2. A bruise of 6.5 cm x 3 cm on lateral side right arm 1.5 cms. away from lateral epicondye of right humerus.
3. A bruise oblique in direction on right side of back 29 cm x 2.5 cm in size extending upto right crest.
4. A bruise 13.5 x 2.5 cm in size oblique in direction extending from lower part of right side of back to the upper part of absence meeting the bruise No. 3,12.3 cms above the right iliac crest.
5. A bruise 14 cm x 2.5 cm in right scapular region oblique in direction.
6. A bruise 12 cms x 2.5 cms in back (left side of back) oblique in direction.
14. All the injuries were found to be ante mortem and caused by a blunt weapon. Dr. Sharma opined that cause of death was internal haemorrhage due to rupture of liver.
15. Bakhtawar Singh (PW 18), after inspection of place of occurrence, prepared Ex. P-44 site plan and inquest report of dead body Ex. P/ 43. It was found that occurrence took place in the field of Bhima Ganchi where at many patches of blood stained soil were found and their samples were taken. He also found that there were trails of a permanent way passing through the field of Bhima at the site. He also found two ploughs, as also reported in the FIR itself by Varda, left at the site. He arrested all the accused persons along with Omsingh, Umpaid Singh etc.
16. After completion of investigation, he filed a charge sheet against all the 32 accused persons of Ex. P-2 report as well as against Oma alias Umpaid Singh in the Court of Judl. Magistrate, who in turn, committed the case to the Court of Sessions Judge. Learned Sessions Judge, after hearing the arguments for charge, discharged Oma alias Ambsingh from the alleged charges vide his order dated 30-11-80 and the same has gone unchallenged. Rest all the 32 accused persons were charged with commission of offences under Sections 147, 148, 302, 302/149, 307, 307/149, 325/149, 323 and 329/149, I.P.C. to which all of them pleaded not guilty and claimed to be tried. Hence the trial was completed. The prosecution examined as many as 18 witnesses.
17. The accused persons were examined under Section 313, Cr.P.C. and they denied the prosecution story and instead, maintained that they did not commit any offence and so also denied the incident as alleged by the prosecution.
18. Accused Jhepa, Bhik Singh, Pahar Singh, Bhav Singh and Maud Singh pleaded alibi and they examined DW 1 Ganga Singh, DW 2 Shav Singh, PW 3 Dhonkal Singh and also Dhan Singh respectively in support of their defence plea. DW 5 Kanjeet Singh was examined in defence to show that there was no way as claimed by the prosecution witnesses.
19. After hearing both the sides, learned Sessions Judge vide his impugned judgment and order dated 23/24-7-1981, convicted and sentenced the appellants Nos. 1 to 7, as above, while extended benefit of probation of Offenders Act to the appellants 8 to 21, acquitting other accused persons and hence this appeal by the appellants as referred to hereinbefore.
20. It may also be mentioned that State has not preferred any appeal against the order of acquittal of accused persons who were tried along with the appellants and hence their order of acquittal has acquired finality.
21. We have heard learned counsel for the appellants as well as learned Public Prosecutor for the State at length and have also gone through the evidence on record of trial Court as well as impugned judgment and we have given our considerate thought to the rival contentions.
22. The learned counsel for the appellants, in the first instant, while assailing the impugned judgment contended that there is voluminous evidence available on record of trial Court but the learned Sessions Judge entirely failed to appreciate the evidence in its right perspective and, in a half hearted manner, taking a superficial view of the evidence, convicted the appellants. The learned Sessions Judge erroneously held that Bhima Ghanchi could have claimed the right of private defence of property in whose field the alleged incident took place whereas, his co-accused persons had no right of private defence of property. The revenue Tehsildar (PW 15) Doongar Singh had no jurisdiction to have inquired into and ordered for opening the way as claimed by Kheta and his associates and hence the villagers of Deegaon were not vested with any legal right to pass through the fields of the Khatedars of village Nagani through which the villagers of Deegaon claimed their right of way. Besides in case there was any obstruction on the way passing from the fields of accused persons, only legal course left for the alleged injured witnesses was to have approached the public authorities for legal remedy, if any, but the learned trial Judge failed to give benefit of exercise of right of defence of property to the accused persons and the view of learned trial Judge in regard to the prosecution evidence is erroneous resulting in perverse finding of guilt of accused persons warranting its reversal.
23. As borne out of the impugned judgment and order of sentences, learned trial Judge has illegally convicted the appellants 1 to 3 only under Section 302/149 while acquitting rest of the accused persons of the same offence. Accordingly, only three persons could not have formed any unlawful assembly as required by Section 141, I.P.C. Besides, alleged fatal injuries of Kheta are neither attributed to appellant Pahar Singh nor to Bhav Singh and, therefore, at the same time, each of them could not have been convicted under Section 302, I.P.C. simpliciter. On the same ground, appellants Chandan Singh and Asu Singh also could not have been liable for commission of offence under Section 307 simpliciter, as well as under Section 307/149, I.P.C. on the face of acquittal of their co-accused persons from the similar .
24. As regards, appellant Jog Singh, who is son of appellant Pahar Singh, it has been submitted that he was aged not more than 16 years at the time of the incident who is falsely implicated in this case and besides Bhoor Singh who was alleged to have been named in array of assailants of deceased Kheta has been given a good -bye by the prosecution witnesses whereas during the course of investigation, Bhoor Singh was also accused of causing injuries to the deceased kheta.
25. It has also been contended that appellants Moti Singh and Man Singh have been sentenced with imprisonment of various terms, as above, while similarly situated 14 accused persons have been extended benefit of release on probation of good conduct. Lastly, it has been contended that there was no intention on the part of any appellant either to kill Kheta or to cause the grievous injury nor there was any unlawful assembly formed with the common object of causing death or grievous injuries to any person and, therefore, at any rate, the liability of the accused persons whose involvement in the alleged incident is proved beyond reasonable doubt, does not travel beyond the ambit of Sections 325/149, I.P.C. and hence conviction of appellants under Sections 302, 302/149, 307, and 307/149, I.P.C. is not sustainable.
26. Accordingly, it has been submitted that Pahar Singh was aged about 67 years while Jog Singh and Chandan Singh, Asu Singh and Man Singh were 16, 21, 30 and 20 years at the time of alleged occurrence and in view of the circumstances, in case they are held liable for commission of offence under Section 325/149, I.P.C, there is every justification for extending benefit of Probation of Offenders Act to the exclusion of Jogsingh being a juvenile offender, not liable to be convicted and sentenced. However, the learned.-Public Prosecutor has vehemently opposed aforesaid contentions raised from the side of the appellants while supporting the legality and correctness of the impugned judgment and the order.
27. However, the learned P.P. vehemently opposed the aforesaid contentions raised from the side of the appellants while supporting the legality and correctness of the impugned judgment and the order.
28. Before adverting to dispose of the aforesaid contentions raised from the side of the appellants, we think it appropriate to discuss, appreciate and reappraise the prosecution evidence as well as the defence advanced by the appellants before the trial Court to find out any irregularity, unreasonableness or illegality in the impugned judgment passed by the learned trial Court.
29. The learned trial Judge has based his findings of guilt of the accused-appellants, as above, on the basis of evidence mainly of injured witnesses who are P.Ws. 2 to 11 besides P.W. 12 Kalia and P.W. 13 Shivnath Singh who were also in the company of injured witnesses at the time of incident. Besides, there is overwhelming medical evidence in addition to other circumstances.
30. As regards the factum of violent and unnatural death of Kheta as a result of injuries caused in the aforesaid incident, there is no dispute nor there is any scope for disputing the same. P.Ws. 2 to 11, who are respectively Amba, Roopa Samrath Singh, Bura, Bagia, Ukia, Jagta, Varda, Gamna and Jawan Singh, have clearly stated that Kheta, who was in the forefront pleading and defending their right of way passing through the fields of the accused-persons situated in the village Nagani through which Kheta and all the injured witnesses who are residents of village Deegaon had access to their fields popularly known as "Tokariiwalas" situated in village Bhetala and there was no other short and convenient way while Pahar Singh and his co-accused persons through whose fields the way passed, were always opposed to the same and the appellant Pahar Singh was leader of the opposite party consisting of the accused-persons and, accordingly, there was, admittedly, animosity between Kheta and his 'associates, most of whom are injured witnesses examined from the side of the prosecution, on the one side and Pahar Singh and his associates, accused-appellants, on the other side.
31. All these injured witnesses have clearly stated that no sooner all of them, while returning from their fields Tokaniwala, after having a round thereof, to their village Deegaon, all the accused-persons were, being armed with lathis, present in the field of Bheema Ghanchi and it was Pahar Singh who vulgarly abused and challenged Kheta and his companions and when Kheta asserted that they had a legal right as also affirmed by the Revenue Tehsildar, Jalore, time and again, to pass from the way leading their fields to their village and Pahar Singh his accomplices had no legal right to obstruct and restrain them from passing from the way which passed through their fields from the times immemorial. Resultantly, he was assaulted and, as a result of injuries received by him, he fell and, as a result of injuries received at the hands of the assailants, he died while he was being transported on bullock-cart from the scene of the occurrence to the Police Station, Bagara alter coverage of two to three fields from there and hence the bullock-cart with his dead body was left at the outskirts of the village Deegaon.
32. P.W. 17 Dr. CXP. Sharma, who was Medical Officer-in-charge of the Government Dispensary, Bagara, performed the post-mortem on the dead body of Kheta and he found wounds and injuries on his person, as already detailed hereinbefore, vide Ex.P.32 post-mortem report. He clearly opined that the cause of death of Kheta was internal haemorrhage due to rupture of liver. He did notice lacerated wounds on his parieto-occipital region of left side as well as right parieto-fronto region but both these injuries were simple in nature and, as a result of internal examination of liver, he found that the right lobe of liver was lacerated and his left humerus bone was also found fractured. Thus, as a result of post-mortem and medical examination of the dead body of Kheta, the proximate cause of his death was rupture of liver as result of being lacerated, besides, having received as many as 5 more injuries as are noted therein.
33. There is neither any suggestion nor any circumstance to hold that all the injuries including the fatal one received by deceased Kheta were not received in this incident and so there was no other direct or indirect contributory factor leading to his death and hence the learned trial Judge did not commit any error in holding that Kheta died an unnatural and violent death at the hands of the assailants in this incident. It was a clear case of homicidal death.
34. Similarly, so far as the injured persons P.W . 3 Roopa, P.W. 4 Samrath Singh, P.W. 5 Bhura, P.W. 6 Bagia, P.W. 7, Ukia, P.W. 8 Jagta, P.W. 9 Varda and P. W. 10 Gamna are concerned, as stated by all these injured persons and so also borne out of Ex. P.2 FIR lodged by P.W. 9 Varda and so also supported by P.W. 18 Bhaktawar Singh, S.H.O. on the basis of Exs.P.33 to P.42 and also corroborated by the statements of P.W. 17 Dr. O.P. Sharma and also revealed from their respective injury reports being Ex.Ps. 26, 25, 29, 23, 27, 30, 31 and 28. All these injured persons who have appeared as prosecution witnesses received multiple injuries in this incident and this factum has also not been successfully challenged by the defence either before the trial Court or before this Court as well. Besides, so far as the injuries of these injured persons are concerned, their statements are further corroborated from the evidence of P.W. 12 Kalia and P.W. 13 Shivnath Singh. Therefore, we are in full agreement with the findings of the learned trial Judge that all these nine injured prosecution witnesses were also assaulted and received multiple injuries, being simple, in this very incident.
35. As regards P.W. 2 Amba and P.W. 11 Jawan Singh, they have stated that they received grievous injuries at the hands of the assailants. The aforesaid prosecution witnesses P.Ws. 3 to 10 have also lent further corroboration to the statements of injured P.W. 2 Amba and P.W. 11 Jawan Singh. So are also the statements of P.W. 12 Kalia and P.W. 13 Shivnath Singh. Besides, P.W. 17 Dr. Om Prakash has also proved injury reports Ex. P. 20 and Ex. P. 22 respectively while stating that both these injured persons received multiple injuries as mentioned therein. As also stated by P.W. 17 Dr. Om Prakash Sharma, since some of the injuries received by Amba and Jawan Singh were suspected to be grievous, they were referred to the Radiologist at Jalore for X-rays of their injured parts and opinion in regard to nature of injuries received by both these injured persons. P.W. 16 Dr. Rajendra Prasad Purohit, who was the Medical Jurist at Government Hospital, Jalore, on 16-8-1980, stated that on the requisition of Medical Officer of Government Dispensary, Bagara, he got left hand and chest of P.W 2 Amba X-rayed at the hospital and, as a result of X-ray plate Ex.P.12, it was found that the left 5th metacarpal bone of his left hand was fractured. It was also found that 10th and 1lth ribs of right side of chest of Amba were fractured as opined in Ex.P.14.
36. P.W. 2 Amba has also stated that he received these injuries, being grievous, in the incident and he had to remain admitted to the hospital as an indoor patient while undergoing treatment for the same. Since the evidence of P.W. 2 Amba is duly supported by all the prosecution witnesses who are injured in this incident itself and so also is fully supported by the medical evidence and, therefore, we do not have any hesitation in upholding and agreeing with the findings of the learned trial Court that P.W. 2 Amba received the aforesaid grievous injuries in the incident.
37. P.W. 16 Dr. Purohit also similarly, on 16-8-1980, got X-rayed skull and left forearm of Jawan Singh and as evidenced from Ex. P. 15 to Ex.P. 17. There was fracture at the fronto-parieto region of right side which was better visible from its lateral view and so also there was fracture of the ulna bone of left side at mid-shaft region and, so, as borne out of evidence of P.W. 16 Dr. Purohit and P.W. 17 Dr. O.P. Sharma, both these injuries received by Jawan Singh were of grievous nature as was the case with P.W. 2 Amba.
38. As regards the skull injuries of Jawan Singh having been found on the right side, the blow of the skull being forceful one, there being mark of injury on the left side of the same, since it was a clear case of "contre-coup" and hence nothing there against is sustainable from the side of the appellant not to sustain the findings of the trial Court that P.W. 12 Jawan Singh received grievous injury resulting in fracture of his right fronto-parietal bone and, therefore, as regards number of injuries as mentioned in Exs. P. 22 and so also as borne out of evidence of P.W. 14 Dr. Purohit, the prosecution proved beyond reasonable manner of doubt that P.W. 11 Jawan Singh received grievous and simple injuries in the incident including the one resulting in fracture of his fronto-parietal bone.
39. As a result of aforesaid ocular as well as medical evidence, we hold that deceased Kheta died an unnatural and violent death as evidenced from Ex. P.32 post-mortem report which has been duly proved by P.W. 17 Dr. O.P. Sharma who performed post -mortem of the same. Similarly all these injuries are also corroborated from the inquest report Ex.P. 43 prepared by P.W. 18 Bakhtawar Singh, as also supported by P.W. 9 Varda. This fact was further confirmed by P.W. 17 Dr. O.P. Sharma vide his Ex. P. 47 report obtained during the course of investigation about proximate cause of death of Kheta.
40. On the basis of aforesaid discussion of prosecution evidence, the prosecution proved beyond reasonable manner of doubt that Kheta died a violent death because of injuries received in the incident. Similarly, P.W. 11 Jawan Singh and P.W. 2 Amba received grievous as well as simple injuries in the incident. Rest of the injured witnesses (P.Ws. 3 to 10) also received multiple simple injuries with blunt weapons in the incident. The findings so arrived at by the learned trial Judge are fully supported by the evidence and material on record warranting no disagreement with the same.
41. The next crucial question that we are called, upon to determine is as to whether the accused-appellants along with some other persons who have been acquitted or otherwise, arc individually and/or vicariously liable for commission of death of Kheta as well as causing grievous and simple injuries to P.W . 2 Amba and P.W. 11 Jawan Singh besides for causing simple injuries to P.Ws. 3 to10.
42. Before reverting to the liability of the accused-appellants for commission of the aforesaid offences, it may also be mentioned that, as also admitted by the accused-appellant Pahar Singh in his examination under Section 313, Cr.P.C. and so also as borne out of the defence advanced by the appellants during the course of trial, there was a dispute in regard to existence and right of way of the aforesaid witnesses for their access from their village Deegon to their agricultural fields situated in the territory of village Bhetala passing through the fields of the appellants Pahar Singh, Bheema etc. situated in the village Nagani bordering and situated between Deegaon and Bhetala and it is also an admitted fact that Kheta was prominently pleading and prosecuting the rightful cause of existence of right of way on the disputed land vesting in the aforesaid land holders of village Deegaon while Pahar Singh and his accomplices through whose fields situated in the village Nagarni, the disputed way passed from the side of village Deegaon to the fields of Bhetala belonging to Kheta and others, were deadly opposed to the same and, Pahar Singh was at the forefront-leading and defending the cause of his own as well as that of his accomplices, all residents of Nagani village. Admittedly, since there were repeated litigations and Pahar Singh and his accomplices, presently appellants before this Court, were opposed to the existence and right of way as claimed and vested in the villagers of Deegaon, both the parties were inimical. Hence, the factum of animosity between the two sides is also not disputed.
43. P.W. 18 Bakhtawar Singh, after registration of case on Ex.P. 2 report of P.W. 9, Varda inspected the place of occurrence which was found in the field Khasara No. 66 of Bheema accused. There were clearly visible marks and trails of a way leading from/to east to west and there were incidences and foot-marks corroborating the prosecution case that the incident took place in this very field as borne out of Ex.P. 44 site plan as well as Ex. P. 45 memorandum thereof. Even blood stained soil was found and the same having been taken into police custody and on chemical examination at the Rajasthan State Forensic Science Laboratory, Jaipur, vide Ex. P. 151, confirmed to be blood stained, the same has confirmed that the incident took place in the field of Bheema. This also could not be disputed by the defence.
44. Now, as regards the existence and right of way from the disputed land, P.Ws. 2 to 13, have clearly stated that there was a customary right of way vesting in the villagers of Deegaon whose fields were situated in the village Bhetala for accessibility to their fields through the way passing from the field of the appellants Pahar Singh, Bheema Ghanchi etc. from the times immemorial. Preceding this incident, for quite some time, Pahar Singh and his associates started causing obstructions on the land of their way and, as result, a complaint was lodged before the Gram Panchayat, Deegaon and, subsequently, with the Collector, Jalore who forwarded their complaint to the Tehsildar, Jalore for necessary action.
45. P.W. Doongar Singh, Tehsildar, Jalore, clearly stated that it was on 1-1-1979 that Kheta and his associates lodged a complaint against the conduct of Pahar Singh and others who were illegally obstructing their right of way and the Collector, Jalore endorsed the report for necessary action to him. On 2-1-1979 itself, he went to the site and notified the villagers of Deegaon as well as Nagani including the accused-persons and also inspected the site of the disputed way. He prepared an inspection report thereof and the Gram Panchayat, Deegaon, on a similar complaint, after site inspection and necessary, inquiry forwarded its report to him. Similarly, the Patwari also made a report in regard to existence of way on the disputed land as claimed by the land holders of Deegaon in regard to their access to their fields situated in the village Bhetala. He also examined number of witnesses and after having completed a full -fledged factual enquiry as borne out from the proceedings of file Ex.P.4, he delivered order Ex.P.11 on 25-10-1979 thereby upholding the claim of the land holders of fields situated in village Bhetala who were residents of village Deegaon including Kheta deceased as well as P.W. 2 to P.W. 13 (excluding P.W. 5 Bhura). Ex.P.4 order dated 25-10-1979 passed by P.W. 15 Doongar Singh clearly recites that the Gram Panchayat of village Deegaon within whose jurisdiction the village Nagani also fell, vide its order dated 8-6-1979, as also borne out of its resolution No. 7 dated 8-6-1979, clearly held that the way as claimed by Kheta and his associates residents of village Deegaon for their accessibility to their fields situated in village Bhetala passed through the fields Khasra Nos. 91 to 96, 62, 65 to 67,45, 43,4,6, 10 and 12 and this way was existing since times immemorial to be used by the land holders of Deegaon village for access to the fields popularly known as "Tokaniwalas" situated in village Bhetana. Anyhow, admittedly, at the time when the dispute about the way arose, this factum of existence of way did not find any mention in the settlement held earlier and, accordingly, Pahar Singh and his accomplices found a pretext to obstruct the way of Kheta and his associates existing since times immoral and being continuously and unobstructedly used as such by the aforesaid land holders residing at village Deegaon. Similarly, P.W. 15 Doongar Singh as well as P.W. 14 Shakru Ali, Revenue Patwari, as also stated by him, from the record and the site inspection, as also from evidence, found that the disputed way of Kheta and others passed through the aforesaid khasaras as borne out of the order of the Gram Panchayat, Deegaon and that the land holders of the aforesaid fields were illegally bent upon obstructing the way restraining Kheta and others from passing from the land of the way depriving them from the accessibility to their fields situated in the village, Bhetala for which they had no legal right or authority. Accordingly, the Tehsildar vide his order dated 25-10-1979 (Ex. P.4) declared that the applicant Kheta and his associates, residents of Deegaon, holding their agricultural fields in village Bhetala, had an immemorial customary legally vested right of way from the disputed land passing through the fields of aforesaid land holders of village Nagani who are the appellants before this Court and, consequently, the appellants were restrained from causing any obstruction or restraint in the free use and exercise of right of way by Kheta and others. There is nothing on record to show that this order of Tehsildar was, at any stage before this incident, was upset, disturbed or modified by the Collector or any other legal authority.
46. The learned counsel for the appellants, while relying on the provisions of Section 251 of the Rajasthan Tenancy Act, 1955, maintained that consequent upon notification dated 17-6-1961 issued by the Government of Rajasthan, the exclusive powers in regard to cases involving the right of way only, vested in the Gram Panchayat concerned and, as a result, the Revenue Tehsildar could not have exercised powers in regard to adjudication of actual enjoyment of right of way or other easement or any right alleged to have been infringed upon by any land holder under the garb of provisions of Sub-section (1) of Section 251 of the said Act and, hence, it has been submitted that the order Ex. P.4 was ab initio void having no legal sanctity behind the same.
47. As also held by the learned trial Judge and so also borne out of similar notification issued by the State Government published in its Gazette on 25-9-1982, earlier the Gram Panchayats were exercising the exclusive jurisdiction in matters relating to right of way only but in matters of other easement of right, the tehsildars were exercising exclusive jurisdiction under notification dated 17-6 -1961 and hence it was further notified that onwards the Gram Panchayat shall exercise jurisdiction in all matters under Section 251 of the said Act and on expiry of 45 days, from the presentation of the application by the complainant, it shall cease to exercise jurisdiction and the Tehsildar shall have thereafter exclusive jurisdiction under this Section for adjudication of right of way claimed by any land holder.
48. Admittedly, this dispute arose in the beginning of the year 1979 before coming into force of the aforesaid notification of the State Government published on 25-9-1982 and not before. Accordingly , since, as evidenced from Ex. P.4 and Ex. P.11 and so also the ocular testimony of the prosecution witnesses P.Ws. 2 to 13 as well as P.Ws 14 and 15, the land holders of village Bhetala residing at village Deegaon being the deceased Kheta and P.Ws. 2 to13 (excluding P.W. 5) were claiming their customary right of easement on the disputed land being so used and exercised by them since time immemorial and this sort of right based on easement as claimed by the villagers and so also held by the learned trial Judge, during the year 1979, could not have been adjudicated upon by the Gram Panchayat alone. However, as evidenced from Ex.P.4 itself, even after receipt of complaint in regard to obstructions on the disputed land of way as claimed by Kheta and his associates, the Gram Panchayat of village Deegaon, after a full-fledged enquiry, as per report dated 8-6-1979 and also the resolution passed in this respect on {he same day by the Gram Panchayat, the claim of Kheta and others in regard to right and existence of way on the disputed land passing through the fields of Pahar Singh and Bheema situated in village Nagani was confirmed and a report thereof was further made to the Tehsildar of Jalore and, consequently, while taking into consideration this report of the Gram Panchayat, Deegaon which was the concerned Gram Panchayat having its territorial jurisdiction over the disputed 1 and of way as claimed by Kheta and others, P.W. 15 Doongar Singh, Tehsildar, Jalore also based his finding apart from his independent enquiry so conducted by him on the report and resolution dated 8-6-1979 passed by the Gram Panchayat; Deegaon as borne out of Ex. P.4 and, therefore, from which ever angle it is viewed, unless Fix.P.4 order, passed by the Revenue Tehsildar, Jalore was upset by the Collector, Jalore, in exercise of his powers under Sub-section (2) of Section 251 of the aforesaid Act, resulting in its reversal, modification or setting aside, the accused-appellants had had no legal right or justification to have flouted Ex.P.4 order on any ground whatsoever.
49. Besides, as evidenced from the evidence of P.W. 15 Doongar Singh as well as P.W. 14 Shakru Ali, after Ex.P. 4 was passed, both P.W. 15 Doongar Singh as well as P.W, 14 Shakru Ali went to the spot and they got the obstruction removed and the obstruction made on the way was cleared for thorough passage and access to Kheta and others. Since, the appellants failed to produce any order of stay or otherwise against Ex.P. 4 order of Tehsildar, Jalore dated 25-10-1979 and, therefore, none of the appellants had had any right or justification to have arbitrarily or illegally again obstructed the disputed land of way. Besides, the defence also did not challenge the factum of clearance of obstruction, if any, on the disputed land as a result of which dispute of Ex. P.4 arose before the Tehsildar as well as the Gram Panchayat of Deegaon and hence there is no merit in the submissions of the learned counsel for the appellants that there is no specific date on which the Revenue Tehsildar as well as the Revenue Patwari went to the disputed land for clearance of the same making the same open, accessible and clear for passage and use by the deceased Kheta and his associates P.W. 2 to 13 since as is also evidenced from the defence advanced in the cross-examination of the aforesaid witnesses of the prosecution, it is clear that Shri Sohan Singh, Advocate, representing the appellants before the trial Court and one Shri Inder Lal, Advocate representing the case of Kheta and his associates were also present at the disputed site. The cross-examination of the aforesaid prosecution witnesses by the defence shows that counsel for the rival parties and so also revenue authorities did visit the site and there could not have been any other purpose except to have removed the obstructions existing on the disputed land opening and clearing for passage and right of way as claimed by Kheta and others as also clearly stated by P.W. 15 Doongar Singh. There is nothing in the evidence of either P.W. 14 Shakru AH or P.W. 15 Doongar Singh to the contrary to dispel the conclusion of the learned trial Judge till preceding 4 or 5 days when the accused-appellants Pahar Singh and Bheema etc. dug-up itches on the disputed way land and placed cut-thorny plants causing obstruction in the right of way of Kheta and his associates. There did exist a clearly marked previously existing way as also confirmed and got cleared and opened at the site by the revenue authorities as marked in Ex.P.5 and therefore, there is no merit in the claim of the appellants that the revenue authorities and the counsel of the parties so appearing at the scene had assembled for the purpose of effecting a compromise in regard to dispute relating to the right of way. Omission of showing this way in the settlement record, as alleged on the basis of Ex.D. 10 old trace-map is of no consequence in view of the aforesaid conclusion.
50. Accordingly, from the evidence led by the prosecution which has remained unchallenged and inspires full confidence, leaves no doubt that just preceding this unfortunate incident, there did exist a right of way vesting in the villagers of Deegaon Kheta and his associates who are injured witnesses for their access from their village Deegaon to their fields situated in the village Bhetala through the aforesaid way leading through the fields of the accused-appellants situated in the village Nagani and the appellants were the persons who had illegally and unauthorisedly, while taking the law into their hands and even having sufficient time to have approached the lawful authorities for mitigating their grievance, if any, resorted to illegal, violent and high-handed acts of digging ditches and placing cut-thorny plants on the disputed land resulting in obstruction in passages of Kheta and his associates making their fields inaccessible through the some portions of their holdings through which the disputed portions of way passed. In view of the these circumstances, the appellants could not have claimed any private right of defence of property on the face of the aforesaid established legal position and the fact that an unobstructed cleared vested right of way was existing just prior to the incident as also confirmed vide Ex.P.4 order passed by the Revenue Tehsildar which was legally existing binding on the appellants and so the prosecution witnesses P.Ws. 2 to 13 and so also the deceased Kheta did not commit any illegality or any offence while removing obstruction caused by the appellants in their fields on the portions of land of their way leading to their fields and having passed peacefully, without any obstruction, to their fields. At about mid-day while they were returning, the appellants conjointly, after learning that the aforesaid prosecution witnesses after removal of obstruction made/raised by them had peacefully passed from there reaching their fields in village Bhetala and they were likely to return from the same way to their village Deegaon and hence all the appellants with some more villagers of Nagani assembled at the field of Bheema accused whereat this incident took place. It is also worthwhile to consider that, admittedly, all the injured persons and so also the deceased Kheta, while proceeding to their agricultural fields situated in village Bhetala from their village Deegaon, finding ditches dug on the land of their way covered with cut-thorny plants, without any resistance, in absence of any of the accused-persons, removed the same and went through the way to their fields and, at the time of the incident, covering of the distance beginning from the field of appellant Pahar Singh, they reached the field of Bheema Ghanchi whereat all the accused-persons duly armed with lathis were waiting for return of the injured persons. The accused-persons already knew that there existed a way and a dispute was enquired into and adjudicated upon by the Tehsildar and the Gram Panchayat, Deegaon, affirming the right of the injured persons to use the disputed portions of fields and the accused-persons whose land fell within the aforesaid Khasras of village Nagani from where the long established customary way of the injured persons was passing from and to their village Deegaon, the obstruction, in spite of the order dated 25-10-1979 passed by the Revenue Tehsildar, Jalore consequent upon report and finding of the Gram Panchayat, Deegaon pursuant to its resolution dated 8-6-1979, the accused-persons flouting the same, on the face of existence of the aforesaid legal order and the fact that the Tehsildar accompanied by the Revenue Patwari had already got cleared the obstruction caused on the land of the disputed way thereby entitling and enabling the injured persons to use the same as before and, therefore, firstly, the accused-persons while causing obstruction on the land of the way, were acting illegally with intent to obstruct passage from there encroaching upon legally established existing right of injured persons. However, the injured persons, as above, had, without any obstruction and resistance, successfully removed the obstruction passed from the way and were, after having rounds of their fields in village Bhetala, returning to their village. Their assemblage and presence at the scene of occurrence by no stretch of imagination could be said to be illegal or unauthorised. It cannot be said . that they had formed any unlawful assembly in terms of Section 141, I.P.C. However, learning about this fact of the injured prosecution witnesses including the deceased Kheta, all the accused-persons conspired and formed an unlawful assembly with the common object of using criminal force to the aforesaid villagers of Deegaon to deprive them of the enjoyment of right of way of which they were in enjoyment and to compel them to omit to use the way which they were legally entitled to as defined under clauses forthly and fifthly of Section 141, I.P.C. All of them had armed themselves with lathis and got prepared for using criminal force and preparing for what it may come to, by using force and assaulting the villagers of Deegaon who were likely to pass from the disputed way and forming an unlawful assembly, they all assembled and so waited in the field of Bheema for the arrival of the injured persons. It may be noted that, assuming that the accused-persons had had any grievance against the said act of villagers of village Deegaon for having buried and covered up ditches dug-up by them on the disputed way and removed the cut-thorny plants from there, they only course left for the accused-persons was to have recourse to protection of public authorities. When they had lost their cause before the Gram Panchayat of Deegaon and so also before the Tehsildar, consequently, the Tehsildar had, as held above, removed the obstruction and cleared the disputed land of way for safe and unobstructed passage and access by the villagers of Deegaon whose fields were situated on the other side of the aforesaid fields of the accused-persons in village Bhetala, the injured witnesses of prosecution residing at village Deegaon had every right to have used the land of way, as above, and so, the only recourse for the accused-persons was to have preferred an appeal under Sub-section (2) of Section 251 of the Rajasthan Tenancy Act. Otherwise too, in case any other offence including trespass or criminal mischief, as submitted by the learned counsel for the appellants, believed to have been committed by the accused-persons, they had enough time and opportunity to have recourse to the protection of public authorities but, for an ulterior motive, with an intent to teach lesson to the injured prosecution witnesses as well as the deceased Kheta, they formed an unlawful assembly and no sooner injured persons and Kheta were passing from the filed of Bheema, on the disputed land of way, Pahar Singh lost no time to have challenged him as exhorted by his accomplices being members of unlawful assembly and, after some altercation, an assault ensued resulting in death of Kheta as well as grievous injuries to P.W. 2 Amba and P.W. 11 Jawan Singh, as above. In this view also, by no stretch of imagination, the injured witnesses and Kheta could be said to have committed any offence of criminal trespass as defined under Section 441, I.P.C. or one under Section 425, I.P.C. and, instead, they were acting in exercise of (heir lawful existing vested right of way and, therefore, we do not find any substance or merit in the submission of the learned counsel for the appellants that since the injured witnesses and so also Kheta committed offence of criminal trespass or criminal mischief and, therefore, there arose any private right of defence of property to the accused-persons to have assaulted the injured persons as well as the deceased Kheta. On the contrary, the provisions of Section 99, I.P.C. inter alia, provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities and in this view of the matter, since the. injured witnesses as well as the deceased Kheta did not appear to be perpetrators of any crime or to be aggressors and, instead, as above, the accused-persons formed unlawful assembly with common object of using criminal force against the injured witnesses as well as the deceased Kheta to obstruct and restrain them from using the disputed land of way for passage from and to their village and fields and so while the injured persons were so passing from the land of way falling in the field of Bhema accused, it were the accused-persons, and not the injured persons and Kheta, who were aggressors. When there is overwhelming direct and circumstantial evidence that it is resultant consequence ensuing from the criminal act of the accused-persons resulting in death and injuries to number of prosecution witnesses, there is no escape from the conclusion that it was the accused-party which was the aggressor and no fault lay with any of the injured prosecution witnesses or the deceased Kheta himself. Accordingly, once it is held that it were the accused-persons who were the aggressors, they are not entitled to claim any right of private defence of person or property, even if it is assumed that any of the injured persons, anyhow, caused simple and grievous injuries to Shobh Singh, allegedly, belonging to the accused-party. Though P.W. 16 Dr. R.K. Purohit, on the basis of Ex. D. 11 injury report as well as Ex. D.12 X-ray plate and Ex. D.14 finding, found that there was a single injury found on the outer aspect and base of right thumb with diffused swelling all around base of thumb of Shobh Singh at the time of examination of his injury on 22-8-1980 but it may also be taken note of the fact that Shob Singh did not lodged any report about this injury alleged to have been received by him. He was not arrayed as an accused. Besides, Shobh Singh did not appear from either side during the course of trial to depose about the injury which he is alleged to have received. This incident, took place on 12-8-1980 and, therefore, there is no explanation for non-examination of the alleged injury of Shob Singh before 22-8-1980. The police did not refer Shob Singh for medical examination and, instead, as also stated by Dr. Purohit, he voluntarily appeared before the Medical Officer and got himself medically examined. Dr. Purohit has stated that this injury was 10 to 15 days old and, in absence of statement of Shobh Singh, the possibility cannot be excluded that Shobh Singh might have received this injury even before this incident either accidentally or otherwise and not at the hands of the injured prosecution witnesses or their companions. Even if it is assumed that Shobh Singh was injured in this incident, in absence of other evidence and on the face of aforesaid conclusion, since it was the accused-party which was the aggressor and, therefore, no right of private defence accrued to the accused-persons to have caused injuries to the injured witnesses of the prosecution and so also the fatal injuries to the deceased Kheta. The right of private defence arises to those who in the face of imminent peril act in good faith and in no case can this right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression. It is one of the canons of the law of right of private defence that such a right would not ensure to an aggressor. Any step restored to thwart an act of aggression is regarded as defensive act and no right of private defence can be claimed against such an act of self-defence. (1998) (2) Raj LW (SC) 207 : (1998 Cri LJ 1617). Accordingly, when all the accused-persons numbering well beyond 21 who are appellants before this Court, themselves armed with lathis and with a view to teach lesson to the injured witnesses as well as Kheta kept waiting with readiness and, with the appearance of the injured persons, they conjointly started assaulting the injured persons, it cannot be said that any private right of defence of persons or property accrued to the accused-persons and, therefore, there did not arise any question of the accused-persons having acted in exercise of any right of private defence of persons of any body or the property. So also, there is no scope for submission for exceeding the private defence of either property or person on the part of accused-persons.
51. Accordingly, as stated by P.Ws. 2 to13 and so also corroborated by the first version of P.W. 9 Varda given before P. W. 18 Bakhtawar Singh and so also corroborated by the medical evidence discussed hereinbefore, all the accused-appellants being present duly armed with lathis being members of unlawful assembly with the common object of using criminal force against the injured persons, as above, while being members of such an unlawful assembly, conjointly resorted to an assault resulting in fatal injuries to Kheta as well as grievous injuries to P.W. 2 Amba and P.W. 11 Jawan Singh and besides multiple simple injuries to P.Ws, 3 to 10, such members of the unlawful assembly knew that grievous and simple injuries were likely to be caused in prosecution of the common object resulting from criminal force used against the injured persons and, when in fact, the members of the unlawful assembly did inflict simple and grievous injuries and as a result Kheta deceased received grievous injuries even resulting in rupture of his liver which proved fatal and Amba and Jawan Singh received grievous injuries while other received simple injuries, the act of the assailants was such which all the members constituting such an unlawful assembly as defined under Sections 141 and 149, I.P.C. knew or there were reasons to have known that it was likely that the persons subjected to an assault by the members of such an assembly were likely to be hurt receiving grievous as well as simple injuries and, therefore, all the members so constituting such an assembly are vicariously liable for causing grievous as well as simple injuries to the injured persons from the side of the prosecution.
52. Undoubtedly, the members of such an unlawful assembly formed, as above, at the filed of Bheema Ghanchai, caused grievous as well simple injuries to the injured persons, as above. These injuries were caused in prosecution of the common object of the assembly or, at any rate, act so committed was such and members of assembly knew to be likely to be committed and, therefore, even if it is assumed that some of the accused-persons were not directly responsible for causing grievous or multiple injuries to any of the aforesaid injured persons of the prosecution side even then vicariously, in terms of Section 149, I.P.C., all the accused-persons whose participation in the incident and presence at the place of the occurrence, as members of the unlawful assembly, has been clearly slated by P.Ws. 2 to 10 and, the same also, could not be denied by P.W. 11 Jawan Singh and P.W. 13 Shivnath Singh also in spite of their inability to have named all the assailants, the prosecution proved beyond reasonable manner of doubt that the accused-appellants were members of an unlawful assembly so formed at the field of Bheema with the common object of using criminal force and it was within their knowledge that their act was, by all means, likely to result in multiple simple injuries and, in addition thereto, grievous injuries to the persons subjected to assault. As a result of conjoint assault made by the members of the assembly, Kheta received grievous and fatal injuries and P.W. 11 Jawan Singh and P.W. 2 Amba received grievous as well as simple injuries whereas P.Ws. 3 to 10 received multiple simple injuries.
53. There is no other explanation for existence and receipt of these injuries by the injured persons in any other manner and at the hands of any other person not being member of unlawful assembly formed by the accused-persons. Though, after investigation, as many as 33 persons were challenged but, anyhow, Om Singh alias Ummaid Singh was discharged by the learned trial Judge while as many as 11 persons so challanged and tried along with the appellants, vide impugned judgment, were acquitted giving them benefit of doubt by the learned trial Judge and the impugned order of their acquittal having not been challenged, their case is not under consideration before this Court. However, as also detailed by the learned Sessions Judge in para 20 of his judgment, while discussing Question No. 4, involvement of the accused-appellants, showing names of the prosecution witnesses who had specifically stated about the role and part played in commission of the aforesaid offences has been discussed, is fully supported from the material on record of the trial Court and we find nothing adverse on record of the trial Court to disagree with the same. Besides, Ex.P2 report lodged by P.W. 9 Varda also further lends corroboration to this conclusion of the learned trial Judge showing the involvement of the accused-persons.
54. In para No. 47 of the impugned judgment, the learned trial Judge concluded that the possibility could not be excluded about innocent presence of accused-persons who were acquitted or their non-presence in absence of cogent, reliable and sufficient evidence about involvement of those accused-persons so acquitted and hence they were acquitted.
55. However, so far as the involvement of the present accused-appellants is concerned, their presence at the scene of occurrence and being members of unlawful assembly and theirs having participated in the conjoint and concerted assault with lathis on the injured persons of the prosecution side, clearly established that there was a common object to cause simple and grievous injuries to the injured persons of the prosecution side and, besides, every member of such an unlawful assembly knew that their act was likely to result in grievous and simple injuries to the injured prosecution witnesses and, therefore, the learned trial judge held that the common object of the unlawful assembly so formed by the accused-appellants was to cause grievous and simple injuries to the victims. Contrarily, the learned trial Judge did not find that the common object of the unlawful assembly was to cause death of either Kheta or any other member of his party specially those who are injured prosecution witnesses. Similarly, the members of unlawful assembly so formed, did not know that it was likely that as a result of their act death of any victim would occur. In view of these circumstances, though P.W. 2 Amba as well as P.W. 11 Jawan Singh have also attributed their injuries specifically to some of the assailants but as evidenced from the findings of the learned trial Judge and so also the evidence of P.W. 11 Jawan Singh himself, the aforesaid injuries as are also noted in Ex. P. 23, were inflicted by Chandan Singh and Asu Singh and one more assailant while, during the course of investigation, in Ex. P. 8 police statement, he attributed his injuries to the accused Pabu Singh, Gulab, Jaipa and Hanjiya. He has, presently, though he was also partly cross-examined by the learned P.P. since he did not lend full support to the prosecution story by naming all the accused-persons as deposed in Ex.P. 8 police statement, denied that he had named all these accused-persons in Ex. P. 8 as his assailants, P.W. 9 Varda, in Ex. P. 2 report, named, in addition to Asu Singh, Chandan Singh, Gulab, Jaipa, Hanjiya and Pabu Singh as assailants. In view of these circumstances, though it cannot be denied that members of such unlawful assembly in prosecution of its common object of causing grievous injuries, assaulted and caused grievous injuries to P.W. 11 Jawan Singh but, anyhow, it is not safe to hold that the appellants Chandan Singh and Asu Singh alone were liable for infliction of these grievous injuries as borne out of statements of P.W. 17 Dr. O.P. Sharma and P.W. 16 Dr. R.K. Purohit.
56. Consequently, since the common object of the unlawful assembly so formed by the accused-appellants and so also concluded by the learned trial Judge, did not travel beyond commission of offence punishable under Section 325, I.P.C. and, as a result, as already concluded hereinbefore, when there was common object of using criminal force and, consequently, causing grievous as well as simple injuries to the victims of the assault, P.W.11 Jawan Singh having received his grievous injuries including the one on the skull as a result of which right parieto-frontal bone was fractured and the injuries so received by him having been held to be a "contre-coup", as above, since there is absence of evidence to conclude that the common object of the unlawful assembly so formed by the accused-appellants was to commit murder and that it was in prosecution of such a common object that grievous injuries of Jawan Singh were inflicted, as above and, therefore, in absence of causation of grievous injury resulting in fracturing right parieto-frontal bone of Jawan Singh even if it is held that this injury, though P.W. 16 Dr. R.K. Purohit, did not opine so, was sufficient in the ordinary course of nature to have caused death in absence of positive finding and evidence in support thereof to hold any of the accused-appellants liable for causing this injury, no accused-appellant including Asu Singh and Chandan Singh could be held liable for commission of offence under Section 307, I.P.C. simpliciter. So also in absence of existence and proof of common object to cause death, no other accused-appellant can be held liable for commission of an offence under Section 307, I.P.C. or with the aid of Section 149, I.P.C. under Section 307, I.P.C. as well.
57. As regards the injuries of P.W. 2 Amba, as already concluded hereinbefore, his left little finger was so found to be fractured and so also his 10th and 12th right ribs were found to be fractured and so far as the authorship of those injuries is concerned, P.W. 9 Varda in Ex. P. 2 report, stated that it was Bheek Singh who caused injuries with a lathi on right side of ribs of Amba while Mana (Man Singh) accused-appellant inflicted lathi blow resulting in fracture of left little finger and injuries of skull as well. It was alleged that it was Moti who inflicted lathi blow on right side of his chest. P.W. 2 Amba also clearly stated that the grievous injuries resulting in fracturing his 10th and 12th right ribs as well as fracture of left little finger resulted from lathi blows inflicted by Moti Singh and Maria (Man Singh) accused-appellants. This version of P.W. 2 Amba is supported by medical evidence. Accordingly, though there is no evidence that the injuries resulting in fracturing of right ribs of P.W. 2 Amba were sufficient in the ordinary course of nature to cause death and since looking to the number of assailants, number and nature of injuries as well as the weapons used and an opportunity and means for causing even death of P.W. 2 Amba, in case, either Moti Singh or Mana (Man Singh) intended to cause death, there being no intervening factor, still they did not cause any other fatal injury and, as a result of this injury, had P.W. 2 died, neither Moti Singh nor Mana could have been held liable for commission of murder as defined under Section 300, I.P.C. simpliciter and, resultantly, no case of attempted murder is established beyond reasonable manner of doubt against either Moti Singh or Mana and, instead, it is found that each of them is proved to be liable for commission of offence under Section 325, I.P.C. simpliciter in addition to one under Section 325/149, I.P.C. as well.
58. Besides, it may also be noted that as regards the simple injuries of all the injured prosecution witnesses including P.Ws. 2 to 11, since members of such unlawful assembly assaulted and hurt resulting in grievous as well as simple injuries to not less than 11 persons including kheta deceased and, therefore, so far as vicarious liability of all the accused-appellants under Section 149, I.P.C. for commission of offences of causing grievous as well as simple hurts fastening appellants with the liability for commission of offences under Sections 325 and 323, I.P.C. is concerned, as also concluded by the learned trial judge, there is no scope for entertaining any doubt.
59. However, since there was a large number of assailants including the present accused-appellants numbering 21 and they had conjointly used lathis in assaulting the injured person of the prosecution side resulting in multiple simple injuries to all of them besides grievous injuries to P.W. 2 Amba and P.W. 11 Jawan Singh in addition to grievous injuries to deceased Kheta resulting in his death and, therefore, without embarking on liabilities of the accused-persons, to the exclusion of those who have been held liable for commission of offences under Section 302 and/alternatively under Section 302/149, I.P.C. as well, as regards liability of all the accused-appellants under Sections 325 and 323 read with Section 149, I.P.C. and so also, as a result of having committed rioting by the members of the unlawful assembly, offence under Section 147, I.P.C. are proved to have been committed and, therefore, there is inescapable conclusion that all the accused-appellants were liable for commission of offences under Sections 147, 325/149 and 323/149, I.P.C. Consequently, to the exclusion of Moti Singh and Mana (Man Singh) so far as direct liability for commission of offences under Sections 325 and 323, I.P.C. in view of the multiple injuries, multiplicity of injured persons and so also that of the prosecution witnesses and the slightest variation as is bound to be, in view of the aforesaid conclusion, there is hardly any need for separate adjudication as to individual liability of such accused-persons under Section 325 or Section 323, I.P.C. simpliciter as well.
60. So far as the liability of accused-appellants Pahar Singh, Bhav Singh and Jog Singh, who have also been held liable for commission of murder of Kheta deceased convicting each of them under Section 302, I.P.C. (barring Jog Singh) as well as under Section 302 read with Section 149, I.P.C. (all the threes) is concerned, the learned counsel for the appellants has, rightly and with all justification, contended that since there was no common object of the unlawful assembly constituted of all the accused-appellants and to the exclusion of three accused-appellants held liable for commission of murder of Kheta, rest all have been acquitted of offences under Sections 302-and 302/149, I.P.C. and, therefore, only three persons, contrary to legal provisions of Section 141, I.P.C. could not have formed any unlawful assembly and, accordingly, there did not arise any question of existence and formation of common object by any unlawful assembly in terms of Section 149, I.P.C. to make these appellants vicariously liable with the aid of Section 149, I.P.C. for commission of murder. The learned trial judge while overlooking the explicit legal provisions of Sections 141 and 149, I.P.C. committed grievous illegality in holding these accused-appellants liable for murder with the aid of Section 149, I.P.C. and on this score the conviction and consequential order of sentence of these appellants under Section 302/149, I.P.C. is liable to be set aside.
61. Though as held earlier, Chandan Singh and Asu Singh have been acquitted of offence under Section 307, I.P.C. for causing grievous injuries to P.W.11 Jawan Singh and, at the same time, their conviction on the same analogy, these two accused could not have been held liable with the aid of Section 149, I.P.C. under Section 307, I.P.C. and on this score as well these appellants, so far as their conviction under Section 307/149, I.P.C. is concerned, are bound to succeed and there is no escape from this conclusion and so they are entitled to acquittal of these charges.
62. Lastly, we are faced with the controversy whether the learned trial Judge has rightly and legally held Pahar Singh and Bhav Singh liable for commission of offence under Section 302, I.P.C. simpliciter as well.
63. As regards conviction of the appellant Jog Singh who is, admittedly, son of Pahar Singh appellant, P.W. 9 Varda, in Ex. P. 2 report clearly stated that after hot altercations took place between Pahar Singh and Kheta, as above, Pahar Singh gave a lathi blow on the head of Kheta as a result of which his turban fell down. Bhav Singh inflicted another lathi blow on the head of Kheta as a result of which Kheta fell down. It was then further alleged that Bhur Singh inflicted a lathi blow on left arm of Kheta while he was lying on the ground. Both Pahar Singh and Bhav Singh inflicted repeated lathi blows on the ribs and illiac region of Kheta while accomplices of this appellant started assaulting companions of Kheta.
64. Ex. P. 2 report itself shows that a detailed narration of the incident was given before P.W. 18 Bakhtawar Singh and there was no challenge thrown to Varda at the time of his cross-examination that he had not correctly taken down the first version given by P.W. 9 Varda in respect of the incident. However, during the course of trial, in addition to P.W. 9 Varda, P.W. 2 Amba, P.W. 4 Samrath Singh, P.W. 5 Bhuria, P.W. 6 Bagiya, P.W. 8 Jagatga and P.W. 10 Gamana have substituted the name of Jog Singh in place of Bhur Singh who was initially named as one of the co-assailants of Pahar Singh and Bhav Singh accused-appellants. However, P.W. 3 Roopa, P.W. 7 Ukia, P.W. 11 Jawan Singh, P.W. 12 Kalia and P.W. 13 Shivnath Singh did not name Jog Singh at all as one of the assailants. In view of these circumstances, the findings of the learned trial Judge in regard to involvement of Jog Singh in committing death of Kheta is not well supported by the evidence on record. The omission of name of Jog Singh as one of the assailants of Kheta in Ex. P. 2 lodged by P.W. 9 Varda who is none but son of the deceased Kheta himself specially when he had also named a number of other assailants who inflicted injuries to his co-injured persons, the omission of the name of Jog Singh in Ex. P. 2 is fatal and there is no escape from this conclusion and, accordingly, when Pahar Singh and Bhav Singh and so also, as initially alleged in Ex. P. 2 FIR and so also in the earlier police version Bhur Singh was one of the assailants of Kheta along with his brother Pahar Singh and Bhav Singh and there could not have been justifiable omission Of the name of Jog Singh in case he was one of the assailants of the deceased Kheta and, accordingly, a great suspicion is aroused about involvement of Jog Singh giving/inflicting blows of lathis to the deceased Kheta and, therefore, he is entitled to benefit of doubt in regard to his involvement in commission of death of Kheta.
65. As regards Pahar Singh and Bhav Singh accused-appellants, their involvement in and authorship of injuries of deceased Kheta leading to his death, in addition to first version of P.W. 9 Varda and so also corroborated by him in his sworn testimony before the trial Court, there are statements of P.W. 2 Amba and P.W. 3 Roopa, P.W. 4 Samrath Singh, P.W. 5 Bhuria, P.W. 6" Bhagia, P.W. 8 Jagata and P.W. 10 Gamana who clearly stated that the injuries as reported in Ex. P. 2 by P.W. 9 Varda, as stated and reiterated hereinbefore, were inflicted by both the accused-appellants Pahar Singh and Bhav Singh with lathis which led to his death. P.W. 7 Ukia did name Pahar Singh as an assailant of deceased Kheta but, anyhow, instead of Bhav; Singh, he has named Janiya in his place and other witnesses except P.W. 6 Bhagiya, have not named Janiya as assailants of deceased Kheta and there is omission of his name in Fix. P, 2 as well. Therefore, there is absence of cogent, reliable and clear evidence to hold Moti Singh or Janiya as assailants of deceased Kheta.
66. However, after going through the statements of the aforesaid witnesses who have involved and named Pahar Singh and Bhav Singh as assailants of deceased Kheta and whose blows of lathis even resulted in lacerating and rupturing the liver of deceased-Kheta leading to his death in addition to seven other injuries including fractures of ribs as noted in Ex. P. 32 and also corroborated by the statement of P. W. 17 Dr. O.P. Sharma resulting from the post-mortem of the dead body of Kheta, there is no doubt left as also opined in Ex. P. 32 and Ex. P. 47 by P.W. 17 Dr. O. P. Sharma, the laceration resulting in rupture of liver of Kheta was the direct cause of his death and this injury was sufficient in the ordinary course of nature to cause death. Besides, as also stated by the medical officer, as a result of blows received on the scapular and back regions, 8th, 9th and 10th ribs were fractured in addition to rupture of liver. Accordingly, it is held that the rupture of liver resulted from the injuries conjointly caused by Bhav Singh and Pahar Singh, besides, as many as 6 other injuries out of which two were lacerated wounds inflicted on the parieto-occipital and right parietal regions, all the injuries were authored by Pahar Singh and Bhav Singh resulting in his death.
67. However, the liability of Jog Singh therefore is not proved beyond reasonable manner of doubt and he is entitled to benefit of doubt.
68. Now, so far as the liability of Pahar Singh and Bhav Singh for their acts resulting in death of Kheta, the learned counsel for the appellants has contended that, as already discussed hereinbefore, the common object of the unlawful assembly so formed by the accused-appellants, did not extend to cause death of Kheta or any of his companions. Therefore, as already concluded hereinbefore, neither of these two accused-appellants could be held liable for commission of murder of Kheta with the aid of Section 149, I.P.C. vicariously. Therefore, such conclusion drawn and arrived at by the learned trial Judge is not legally and factually sustainable.
69. Though these accused-persons have not been charged with for commission of offence of murder of Kheta with the aid of Section 34, I.P.C. by either of them in furtherance of common intention of committing murder of Kheta but, in case it is proved beyond reasonable manner of doubt that both these accused-persons formed any common intention to commit murder of Kheta and it was in furtherance of such common intention that either of them caused death of Kheta, they could be held liable with the aid of Section 34, I.P.C. for commission of murder of Kheta under Section 302, I.P.C. but, as regards the prosecution evidence discussed hereinbefore, there is no evidence to prove beyond reasonable manner of doubt that both Pahar Singh as well as Bhav Singh shared common intention to cause death of Kheta. However, these two accused-appellants, as concluded hereinbefore, are found to have inflicted not less than eight injuries on the person of deceased-Kheta. Each Bhav Singh and Pahar Singh are alleged to have inflicted one injury on head of deceased-Kheta in his standing position but neither injury proved to be grievous nor the same was serious one contributing to the death of deceased-Kheta. Besides, rest of the injuries, at any rate, have been attributed to three persons and the liability and authorship therefore, of Pahar Singh and Bhav Singh alone having been proved beyond reasonable manner of doubt, as regards the injuries which proved fatal resulting in rupture of the liver of the deceased, the prosecution failed to prove whether it was the act of Bhav Singh or Pahar Singh who was directly responsible for the injuries that proved fatal resulting in death of Kheta-deceased. Both these accused-appellants did not inflict injuries on the head of the deceased and, instead, they are alleged to have caused injuries on the back and scapular regions as well as left arm and the alleged two injuries inflicted on the head were simple and, in view of these circumstances, looking to the nature of the aforesaid evidence and the background of this incident, the prosecution has not been able to prove beyond reasonable manner of doubt that the act of either accused was committed with the intention or imminent knowledge as required by Section 300, I.P.C. and the act of either accused or both of them fell within the ambit of commission of culpable homicide amounting to murder and, besides, there is no evidence that there was any pre-existing common intention or immediately formed such common intention to commit murder of Kheta on the part of these two accused-persons and it was in furtherance of their common intention that either of them caused fatal injuries to deceased-Kheta. However, in absence of any intention or common intention shared by both the accused-appellants to commit murder of Kheta making them liable under Section 302, I.P.C, as discussed above and so also looking to the repeated blows of lathis given by both these accused-appellants who are real brothers and who were, admittedly, disposed inimically against the deceased-Kheta who was at the forefront of prosecuting the cause of right of way from the disputed land to the opposition from the side of Pahar Singh and his associates, inflicted as many as 7 to 8 injuries as borne out of Ex. P. 32 post-mortem report and so also supported by P.W. 17 Dr. O.P. Sharma resulting in fracture of as many as three ribs and consequently rupture of the liver of the deceased resulting in his death and, in view of these circumstances and the direct as well as medical evidence, both the accused-persons who are real brothers and inflicted repeated injuries to the exclusion of any grievous or fatal injury on vital part like head, still inflicted injuries on the chest, back and scapular regions of Kheta with the knowledge that it was likely to cause death but without any intention to cause his death or to cause such bodily injury as was likely to cause death and, accordingly, the act of the accused-appellants Pahar Singh and Bhav Singh is squarely covered by Section 304, Pt. II, I.P.C. and, without any prejudice shown, each of them is found to be guilty for commission of offence of culpable homicide not amounting to murder being punishable under Section 304, Pt. II, I.P.C. read with Section 34, I.P.C. Accordingly, the findings of the learned trial Judge holding both these accused-appellants liable under Section 302, I.P.C. simpliciter as well as under Sections 302/149, I.P.C. are not sustainable and the same do not stand to legal test and, accordingly, the same are liable to be modified to this extent.
70. However, so far as Jog Singh is concerned, his involvement for commission of the aforesaid offences, as brought out against his other co-accused-appellants is concerned, the same is well brought out from the evidence of P.W. 2 Amba, P.W. 3 Roppa, P.W. 5 Bhuria, P.W. 6 Bagia, P.W. 8 Jagata, P.W. 9 Varda, P.W. 11 Jawan Singh and P.W. 12 Kalia and, therefore, Jog Singh is also held liable for commission of offences punishable under Sections 147, 325/149 and 323/149, I.P.C.
71. As regards the accused-appellants Pahar Singh and Bhav Singh, who have been held liable for commission of offence under Section 304, Pt. II read with Section 34, I.P.C, they are also, on the basis of aforesaid discussion, resulting in conviction of their co-accused persons for other offences, they are also liable for commission of offences under Sections 147, 325/149 and 323/ 149, I.P.C. as well.
72. Here, it may also be observed that the defence evidence in regard to alibi of Pahar Singh, Bhav Singh, Bheek Singh, Jaipa, Man Singh, as testified by D.W. 1 Ganga Singh, D.W. 2 Sav Singh, D.W. 3 Dhokal Singh and D.W. 4 Than Singh is of no consequence and the evidence of alibi being of a weak type, besides, looking to the nature of the cross-examination of the prosecution witnesses, this plea is nothing but an afterthought and is liable to be rejected at the first sight as has been rightly done by the learned trial Judge and so also the evidence of D.W. 5 Ranjeet Singh has also no bearing on the face of aforesaid finding in regard to existence of way from the time immemorial being used by the villagers of Deegaon.
73. No other submission having any material bearing on the merits of this appeal in other respect is helpful in arriving at any other conclusion except the one arrived at, as above, on the basis of evidence and material relied upon by the prosecution.
74. Accordingly, on the basis of aforesaid discussion, this appeal merits its part acceptance.
75. Accordingly, Pahar Singh, Bhav Singh and Jog Singh are entitled to be acquitted of offences under Sections 302 and 302/149, I.P.C. However, both Pahar Singh and Bhav Singh are liable to be convicted under Section 304, Pt. II, read with Section 34, I.P.C. in addition to under Sections 325/149, 323/149 and 147, I.P.C. However, Jog Singh is rightly found to have been guilty of commission of offences under Sections 325/149, 323/149 and 147, I.P.C. by the trial Court.
76. Appellants-Chandan Singh and Asu Singh are entitled to acquittal of offences punishable under Section 307 as well as under Sections 307/149, I.P.C. However, they are liable to be convicted under Sections 325/149, 323/149 and 147, I.P.C.
77. As regards Mana (Man Singh) and Moti Singh appellants, for commission of offences under Section 325 as well as under Sections 325/ 149, 323/149 and 147, I.P.C. their conviction is affirmed and the appeal there against is liable to be dismissed.
78. As regards the appellants Nos. 8 to 21, viz., Ladia, Balwant Singh, Bheek Singh, Parbat Singh, Ran Singh, Roop Singh, Kana, Sohan Singh, Gan Singh, Amb Singh, Sav Singh, Nathia, Bhabhoota and Punama, in view of the aforesaid discussion, so far as their appeal against the conviction under Sections 325 and 323, I.P.C. simpliciter is concerned, the same is accepted but, however, as regards their conviction under Section 325 read with Sections 149, 323/149 and 147, I.P.C. is concerned, appeal there against is liable to be dismissed and the impugned judgment of their conviction under these sections is affirmed.
79. As regards impugned order of sentence, so far as the appellants Nos. 8 to 21 are concerned, instead of being sentenced immediately, the learned trial Judge has extended benefit of release on probation of good conduct and there is no appeal against this order and this order of release on probation of good conduct so far as appellants Nos. 8 to 21 are concerned, does not deserve to be disturbed and instead merits to be affirmed.
80. As regards the appellant-Pahar Singh and Bhav Singh, who are real brothers and, at the time of their examination under Section 313, Cr.P.C. they are stated to be aged 55 and 67 years, their learned counsel contended that both these appellants were arrested on 13-8-80 and, thereafter, having been confined to police as well as judicial custody, they faced trial and, lastly, they were convicted vide impugned judgment and it was on 27.-2-84 that their sentences were suspended and they were released on bail by this Court and so both Pahar Singh as well as Bhav Singh have already suffered a sentence of imprisonment of three years six months and 15 days. Accordingly, since looking to the background of the incident and nature of the evidence besides the old and infirm age of both these appellants who have already undergone more than 3-112 years' imprisonment, since their conviction under Sections 302 and 302/149, I.P.C. has also been set aside, they be released on either probation of good conduct or be let-off with the sentence of imprisonment to the extent already undergone by them.
81. As regards Jog Singh and Asu Singh appellants, the learned counsel for the appellants, while relying on the decision of Hon'ble the Supreme Court rendered in Raisul v. State of U.P. 1976 SCC (Cri) 613 : 1977 Cri LJ 1555 and Sujana v. The State of Rajasthan 1990 Cri LR (Raj) 306, submitted that as also stated by both Jog Singh and Amb Singh, as stated above in their statements recorded, under Section 313, Cr.P.C. on 8-6-81 by the learned trial Judge, they were aged respectively 16 and 15 years and not more and in absence of evidence contrary to the same since there are no reasonable grounds to disbelieve versions of both these accused-appellants that they were not more than 16 years on the date of incident having taken place on 12-8-80 and, anyhow, as borne out of the aforesaid decisions, since the Rajasthan Children Act, 1970 was not extended and made applicable to Jalore District before 14-11-81 but, in view of the aforesaid decisions, though both these juveniles have been tried by the trial Court and convicted and sentenced, as above, but since much time has elapsed since then and, looking to the change of circumstances and subsequent development as held by the Hon'ble Apex Court in the case of Jayendra v. State of Uttar Pradesh 1982 Cri LR (SC) 20 : 1982 Cri LJ 1000, while sustaining conviction of both these accused-appellants, if any, they may not be required to undergo any substantive sentence and the same be quashed. As regards age of both these accused-persons as evidenced from their arrest memos Ex. P. 70 and Ex. P. 76 prepared on 17-8-80, the age of Jog Singh as well as Amb Singh was recorded to be 18 years. Besides, none of these accused-appellants raised any objection in regard to their age before the trial Court till they were examined under Section 313, Cr.P.C. Besides, they did not adduce any prima facie evidence in support of their claim that they were aged not more than 16 years at the time of commission of the offences and so they could not have been tried or, even after trial and conviction so sentenced, as above. Since this objection has been taken at a belated stage and no such objection was raised before the trial Court as well. In this view of the circumstances, presently, looking to the difference in age between that of Pahar Singh and Jog Singh, it does not appear probable that either Jog Singh or Amb Singh was aged less than 18 years at the time of the commission of the offences with which they were charged and, lastly, they are held to have been guilty therefore. Accordingly no distinctive or different treatment in regard to conviction or sentence is called for in respect of both of these appellants. However, since along with other co-accused persons to the exclusion of Pahar Singh and Bhav Singh, those who have not been given benefit of release on probation of good conduct similar to appellants Nos. 8 to 21, being extended benefit of release on probation of good conduct and, accordingly, both these appellants also deserve the same treatment in regard to order of sentence, if any.
82. Lastly, the leaned counsel for the appellants so far as the accused-appellants Chandan Singh, Asu Singh, Man Singh and Moti Singh are concerned, on the face of their conviction for offences other than murder or attempted murder submitted that since appellants Nos. 8 to 21 were extended benefit of release on probation of good conduct and so also there is no justification for distinguishing and meting out a different treatment in regard to order of sentence in respect of these five accused-appellants who have not been extended benefit of release on probation of good conduct and they also deserve to be accorded the same treatment. This submission of the learned counsel for the appellants finds favour with us with full justification. However, having regard to the fact that, in the aforesaid circumstances, Kheta was done to death and, besides, P.W. 11 Jawan Singh and P.W. 2 Amba suffered grievous injuries at the hands of appellants and so also as many as 8 other persons who are P.Ws. 3 to 10 also suffered multiple injuries, while limiting the sentence of imprisonment awarded to the appellants Pahar Singh and Bhav Singh to the extent already undergone, there is every justification for enhancement in the amount of fine to be imposed on both these appellants. Similarly, while extending benefit of release to rest of the appellants on probation of good conduct who have not been meted out similar treatment by the trial Court, we think it expedient in the interest of justice to the victims as well, in exercise of powers vested under Section 5(1) of the Probation of Offenders Act, 1958, reasonable amount of compensation be ordered to be paid by these convict-appellants as well who are being extended benefit of being released on probation of good conduct.
83. Consequently, we accept this appeal in part. Accordingly, the impugned judgment and order of conviction of appellants-Pahar Singh and Bhav Singh under Section 302 as well as under Sections 302/149, I.P.C. is hereby set aside and they are acquitted thereof. Instead, both Pahar Singh and Bhav Singh are convicted under Section 304, Pt. II, I.P.C. read with Section 34, I.P.C. and each of them is awarded sentence of imprisonment to the extent already undergone by them, as above. Each Pahar Singh and Bhav Singh is also awarded sentence of fine of Rs. 5,000/- under Section 304, Pt. II read with Section 34, I.P.C. and in default of payment of fine, to undergo one year's R.I. and their conviction and sentences under Section 323, I.P.C. simpliciter are also set aside and they are acquitted thereof. However, their conviction under Sections 325/149, 323/149 and 147, I.P.C. is affirmed and the sentences of imprisonment of three years, three months and three months as well as fine respectively awarded there under are also affirmed, out of which all the substantive sentences are to run concurrently.
84. Accused-appellant Jog Singh, on the basis of aforesaid discussion, is acquitted of offence under Sections 302/149 as well as under Section 323, I.P.C. and his conviction and order of sentences under the impugned judgment are hereby set aside. However, his conviction under Sections 325/149, 323/149 and 147, I.P.C. is hereby affirmed.
85. As regards Chandan Singh and Asu Singh appellants, their conviction and sentences under Sections 307 and 307/149, I.P.C. respectively and the order of sentence passed there under are hereby set aside and they are acquitted of these offences. Similarly, their conviction under Section 325, I.P.C. and order of sentence there under is also set aside and they are acquitted of this charge. As regards judgment of their conviction and order of sentence under Sections 325/149, 323/149 and 147, I.P.C. the same is hereby affirmed.
86. As regards Mana alias Man Singh and Moti Singh appellants, their conviction under Sections 325, 325/149, 323/149 and 147, I.P.C. respectively under the impugned judgment is hereby affirmed.
87. As regards appellants-Jog Singh, Chandan Singh, Asu Singh, Mana alias Man Singh and Moti Singh whose conviction, as above, has been partly sustained and affirmed, as regards order of sentences of imprisonment as well as fine and sentences awarded in default of payment thereof under the impugned order, the same are set aside and since all the aforesaid offences for commission of which all these convict-appellants have been convicted are neither punishable with death nor with imprisonment for life and we are of the opinion that, having regard to the circumstances of the case including the nature of the offences and character of the offenders, there being no previous conviction against any of them, it is expedient to release each of these five convict-appellants on probation of good conduct and, accordingly, we, instead of sentencing each of these appellants at once to any punishment of imprisonment or fine, for their conviction for the aforesaid offences, directed that each of these convict-appellants be released on entering into a bond in the sum of Rs. 5,000/- with a surety bond in the like amount to the satisfaction of the trial Court to appear and receive sentences when called upon during the period of three years from the date of execution of such bonds and, in the meantime, to keep peace and be of good behaviour. They are allowed one month's period to enter into and execute personal bonds as well as surety bonds before the trial Court from the date of this order. In case they fail to comply with this order, the matter shall thereafter be reported to this Court for passing appropriate order of sentences.
88. However, we think it fit and expedient in the interest of justice with a view to do full justice to the heirs of the deceased-Kheta as well as injured Jog Singh and Amba to award just and adequate sum of compensation in exercise of powers under clause (a) of Sub-section (1) of Section 5 of the Probation of Offenders Act, 1958, accordingly, we further order that each of these convict-appellants shall pay Rs. 3,000/- as compensation so as to be paid to the aforesaid legal heirs/injured persons within a period of one month from the date of this order. In default of payment of amount of compensation, this amount shall be recoverable by the trial Court as a fine in accordance with the provisions of Sections 421 and 422, Cr.P.C.
89. As and when the amount of fine imposed on the appellants Pahar Singh and Bhav Singh as well as the amount of compensation ordered to be paid by the other convict-appellants are realised, out of the same, each P. W. 2 Amba and P. W. 11 Jawan Singh shall be paid Rs. 5,000/- as compensation. Rest of the amount of fine and compensation so realised from the appellants, shall be payable in full to the legal heirs of deceased-Kheta without loss of time by the trial Court.
90. As regards appeal of appellants Nos. 8 to 21, the same is hereby dismissed and the impugned judgment of their conviction as well as their release on probation of good conduct stands affirmed warranting no interference with the same.
91. This appeal stands disposed of being accepted in part with the aforesaid modifications in the said terms.