CHAND DAN Vs. STATE

JUDGEMENT

(1.) THESE six appeals arise out of a single case. The six appellants were tried by the learned Sessions Judge of Nagaur for various offences, and convicted and sentenced as under: - (1) Chandi Dan was convicted under section 304, Part 2, of the Penal Code, and sentenced to undergo ten years' rigorous imprisonment; (2) Kandan and Mangej Dan were convicted under section 147 of the Penal Code, and sentenced to undergo two years' rigorous imprisonment; (3) Shambhu Dan, Mohan Dan and Gorkhia Nat were convicted under section 147 and 323 of the Penal Code, and sentenced to undergo two years' rigorous imprisonment on the first count, an 1 one year's rigorous imprisonment on the second count. The sentences were directed to run concurrently in case of each of the accused. Every one of the six accused has filed a separate appeal.

(2.) THE case for the prosecution is that the deceased Kistura and his two nephews, Pema and Gyana, P. Ws. 5 and 7, were in possession of a field known as 'kerewala' in village Nundra, which was claimed by Chandi Dan as his own, and he wanted to eject them. THEre had been some litigation between them. It is stated that on the 9th of June, 1949, when Kistura, accompanied by Pema and Gyana, was clearing the bushes in the field Kera-wala at about 8 or 9 A. M. , the six appellants accompanied by 8 others, came to the field armed with lathies, a gun and a sword, and threatened Kistura and his nephews with death if they carried on the clearance of the field for the purpose of cultivation, Kistura, Pema and Gyana began to run out of fear, but were followed by the party of Chandi Dan. THE fugitives were overtaken in the adjoining field of Bheron, and it is alleged that Mohan Dan gave the first blow on Kistura's shoulder. Kandan gave another blow on the right temple, which felled him. THE accused Chandi Dan is then alleged to have given a blow with the butt-end of a gun with great force on the head of Kistura. THE rest of the party of Chandi Dan assaulted Kistura as well as Pema and Gyana. Kistura died on the spot, and the assailants ran away. A report was lodged by Budha Ram, who was alleged to be an eye-witness having seen the occurrence from the field of one Jagannath. THE report was made at 9 P. M. at the Police Station, Gachhi-pura, 7 miles from the scene of occurrence. It was a report in writing, and is Ex. P. 1. THE investigating Officer reached the village on the next day, and arrested the six appellants on the 10th of June, 1949, and after investigation, 9 persons were challaned, including the six appellants. THE other three were Deva, Rama and Ladhu. THE inquiry was conducted by the Sub-Divisional Magistrate, Parbatsar, who committed all the nine persons to the Court of Session on charges under sections 302, 148 and 149 of the Penal Code. THE learned Sessions Judge amended the charges, and tried the accused on the following charges: - (1) Chandi Dan, under section 304, Part 2, of the Penal Code, for the homicide of Kistura, and under section 148 of the Code for having committed rioting armed with a deadly weapon, viz. , a gun; (2) Kandan, under section 304, Part 2, of the Penal Code, for causing the homicide of Kistura, and under section 148 of the Code for rioting armed with a deadly weapon viz. , a sword; (3) Mangej Dan, under section 147 of the Code for rioting, and under section 323 for causing simple hurt to Gyana; (4) Shambhu Dan, under section 147 for rioting, and under section 323 for causing simple hurt to Gyana; (5) Mohan Dan under section 147 for rioting, and under section 323 for causing simple hurt to Kistura; and (6) Gorkhia, under section 147 for rioting, and under section 323 for causing simple hurt to Kistura. It is not necessary to state the charges framed against Deva, Rama and Ladhu who were acquitted. THE accused denied the charges, but the learned Sessions Judge, after trial, convicted and sentenced the appellants as aforesaid.