STATE Vs. MOTI

JUDGEMENT

(1.) These are two connected matters, which arise out of the judgment of the learned Additional Sessions Judge, Jaipur District, Jaipur, dated the 29th April 1960, and we propose to depose of them by a single judgment. Appeal No. 225 of 1960 is by Moti and 8 others accused, all of whom have been held guilty under sec. 302 read with sec. 149 I.P.C. and under sec. 148 I.P.C. and also under sec. 323 read with sec. 149 I.P.C. And of these only Mulia accused had been sentenced to life imprisonment under sec. 302 reach with sec. 149 I.P.C. and to various periods of imprisonment on other counts, and the other accused have been awarded sentences of imprisonment extending over a number of years on all the counts including that under sec. 302 read with sec. 149 I.P.C, all the sentences to run con -curently. When the appeal came before us for hearing we felt that on the findings of the learned judge the sentences pissed by him against the various accused under sec. 302 read with sec. 149 I.P.C. with the exception of Mula were obviously illegal, and therefore, we, acting in the exercise of our revisional jurisdiction, ordered that notices should go to the other accused to show cause why their sentences should not be enhanced to life imprisonment. Mr. O.C. Chatterjee learned counsel for the accused, accepted notice for all these accused and submitted that the appeal and the revision be heard together and we have acceded to this request. This revision is Number 17 of 1962.

(2.) The case for the prosecution is briefly this: - -It is alleged that on the 13th January 1959, Kalya and deceased Gungu were working at the well of die former when at about 11 or 12 Oclock in the morning all the 9 accused armed with weapons, namely lathis, a Kulhari Danda gandasa came to the well. As soon as they came there, they ran to beat Gangu and Kalyan. The latter took to their heels. The accused caught them at a distance of about 200 to 300 paces in the field of one Sheo bus Balai. The story further is that the accused Muli struck Gangu with an axe, and accused Ramakishan, Jagan Nath and others gave a number of lathi blows to Kalyan. The victims having raised an outcry P.W.S. Bheria, Narain, Chandra, Ganesh and one other person Gyarsa came from their Dhani to rescue Gangu and Kalyan. The accused beat up these persons also with lathis. It is further alleged that the accused Rama Kishan struck P.W. Ganesh with a gandasi. As a result of beating given to Gangu he became unconscious on the spot. A first information report of this occurrence Ex.P. 3 was lodged by Kalyan one of the victims, at Police Station, Lalsot on the very day at 8.45 P. M. As respects the motive of the offence, it was mentioned in the first report that relations between the parties had become strained for the last 3 or 4 months in connection with certain land in Badh Mirpura, and that Kalyan had made a report against all the accused and certain other persons at the thana, as a result of which the latter had been challaned and the case was pending in a Magistrates court. That there was an enmity between the parties is not disputed on the side of the defence either, and there is ample material on the record to show that some time before this incident took place, Kalyan, the author of the first information report, and the accused Gyarsa did joint cultivation on a certain field or fields, and Gyarsa turned out Kalyan because he suspected that Kalyan was carrying on an illicit intimacy with his (Gyarsas) wife or had designs on her. It is also in evidence that Gyarsa had started criminal litigation against Kalyan and Gangu and certain other persons in connection with his wife. There is no doubt, therefore, that there was bad blood between the parties. It may be pointed out at this place that the accused persons had also filed a report Ex.P. 55 at this very thana in which they accused Gangu, Kalyan and 12 other persons of having come to their well, where the accused Mulia, Motiram and Jagan Nath were working, with the intention of giving them a beating. It was further alleged in this report that Gangu gave a lathi blow to Gyarsa accused, and another Gyarsa S/o Narain struck Mulia Motiram and Jagan Nath with axes, and the rest of the persons complained against, had belaboured them with lathis and dandas. This report was filed by Gyarsa accused at 6 -30 P.M. on the very day that is, 13th Jan., 1959. The Sub - Inspector Lalsot, P.W. Hukamchand proceeded to the spot and commenced the usual investigation. He sent the injured persons, among the prosecution party, namely, P.Ws. Bheria, Narain, Chandra, Ganesh and Kalyan to the dispensary at Lalsot. He also found that among the accused, Gyarsa, Moti, Mulia and Jgannath had been injured and he sent them also to the aforesaid dispensary at the same time. The injury reports prepared by Dr. N.D. Mathur are Exs.P.31 and P. 34 to P.38 and Exs.D. 5 to D.8 of these the injury report in connection with Gangu deceased is Ex.P. According to this report, Gangu had received two incised wounds on his head, one on the left parietal region and the other on the right parietal, and there were two more injuries sustained by him, one of which was a lacerated wound also on the head, and the only other injury was an abrasion on the left side of the back. All these injuries according to the doctor, were simple. The first two were by a sharp edged weapon and the last two by a blunt weapon. The injuries caused to the other persons on the side of the prosecution were all simple, which were in all 17 in number and caused by blunt weapon*. According to this very doctor, four of the accused persons, namely Gyarsa, Mula, Moti and Jagan Nath had also sustained simple injuries all of which appear to have been caused by a blunt weapon, with the exception of injury above the right eyebrow of the accused Mulia which was caused by a sharp -edged weapon. Gangu died on the 16th January, 1959. The dead body of Gangu was sent for post mortem examination to the Sawai Mansingh Hospital at Jaipur, and Dr. R.K. Sharma did the autospy. See Ex.P.51. According to this doctor the deceased died of the head injuries and haemorrhage arising from a facture of the skull bones. Unfortunately Dr. Sharma could not be examined as a witness either in the committing court or in the court of Sessions, the alleged reason being that he had become insane at the time he could be produced for the evidence. An application was made by the learned Dy. Government Advocate before us on 8th January, 1962, after the arguments had been opened by learned counsel for the accused, that the said Dr. R. K. Sharma had since recovered and therefore, this court be pleased to summon and examine him in this court. We shall deal with this matter later. It appears that the police came to the conclusion that there was no substance in the report filed by the accused, and so far as the report filed by Kalyan is concerned all the accused were challaned and in due course convicted and concerned as stated above.

(3.) So far as the defence of the accused is concerned, all of them denied their guilt. Five of these namely, Partapa, Sheobux, Sheobux, Ramakishan and Amarphool pleaded alibi and they stated that they had gone to certain other villages on the day of the occurrence, the names of which it is unnecessary to mention. Gyarsa accused came forward with a counter story. His story was that there was an old standing enmity between him and Gangu, Kalyan and certain other persons in connection with a criminal assault on his wife, and that on the day of the occurrence the latter was weeding out grass in his field. At that time Gangu entered his goats in that field. Gyarsas wife was trying to push them out when Gangu abused her. Kalyan was also with Gangu at that time. The woman cried out, and this brought Gyarsa to the field. Thereupon hot words were exchanged between them and Gangu and Kalyan threatened to beat him with lathis. He shouted for help, and accused Mulia who happened to be close by came over there. Then Gangu and Kalyan shouted to their relations Bheria, Narain, Chandra, Ganesh and another Kalyan for help. The case of Gyarsa is that before these persons arrived, Gangu deceased gave a lathi blow on the head of Mulia. Mulia then grappled with Gangu and they both fell down on the ground. By this time Bheria and others had arrived and some of these had axes in their hands and the rest had lathis. Kalyan then snatched the axe, which Gayrsa of the prosecution party had in his hand and he and Narain wanted to strike Mulia with axes, and while they were attempting to do that, Gangu had in the meantime come on the top of Mulia and was thus accidently struck in the head with axes by both Kalyan and Narain, persons of his own pary. Gyarsa further stated that accused Jagannath and Moti, who had also come to save him, were beaten up by members of the prosecution party, although he did not know who beat them. Thereafter Bheria and his friends left the place taking Gangu with them. He further went on to state that he went to the police and lodged the report Ex. P. 55. Thereafter they were sent for medical examination to the dispensary at Lalsot, and eventually he and the other accused were arrested after three or four days thereof. The defence of accused Mulia is on the same lines as that of the accused Gyarsa which we have set out in detail above. His version was that he had heard the cries of Gyarsa and his wife, while he was guarding his crop in the field and so he went to them. He tried to intervene to save the latter when Gangu struck a lathi blow on his head and before Gangu attempted another) lathi blow on him he grappled with Gangu and they both fell down, Gangu falling below Mulia. It is further said that Gyarsa and Narain of the prosecution party had axes in their hands. Then Kalyan threw away his lathi and took up Gyarsas axe and he and Narain wanted to strike him with the axes. At this stage he managed to put up Gangu on the top of him with the result that the axes of Kalyan and Narain fell on Gangus head and thus he was injured. This accused further stated that thereafter Jagan Nath came there to intervene and he was also injured by Bheria, Narain and others. Thereafter certain other persons came from the neighbouring field and separated the two parties.