BISHAN SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal taken by accused Bishan Singh, Kishan Singh and Pakhar Singh, residents of Kal-puria, police station Talera, District Bundi, against the judgment dated August 31, l'97o, of Mr. Bhanu Kumar Jain, Additional Sessions Judge, Bundi, convicting and sentencing the accused-appellants as under:

(2.) THE prosecution story, in brief, is that there was a land (Khasra Nos. 141/1, 142/1, 171/7 and 173/1), situate in village Kalpuria. That land belonged to Kalu and Dhanna. On September 22, 1968, at about 2 P. M. Kalu, Dhanna, Gangolia, Sanwalia, Kanha and Nanhi were weeding out useless plants and grass in the paddy field. At that time Mahendra Singh, Teja Singh, Pakhar Singh, Bishan Singh, Chanchal Singh, Karan Singh and Kishan Singh, armed with various weapons, entered the land and assaulted Kalu and Dhanna. As a result of the injuries sustained by Kalu, he instantaneously died on the spot. Gangolia, P. W. 3, Mangi Lai, Nanhi and Dhanna also received certain injuries. Anandi Lai, P. W. 1, after having received information regarding the incident, got first information report (Ex. P-l) written by Kalyan, P. W. 5 and sent it with one Birdhi Lai, P. W. 2, to the police station, Talera. On receipt of the report, the police registered a case under Sections 302 and 307, I. P. C, and took over investigation. After necessary investigation a challan was presented by the police to the Court of Additional Munsiff Magistrate No. 1, Bundi, against the above named seven accused persons under Sections 302 and 307, I. P. C. Learned Magistrate conducted preliminary inquiry and committed all the accused to the Court of Additional Sessions Judge, Bundi. The Additional Sessions Judge framed charges against the accused under Sections 148, 447, 302/149 and 324/ 149, I. P. C, to which they pleaded not guilty. In support of its case the prosecution examined 21 witnesses. In their statements, recorded under Section 342, Cr. . P, C, the accused denied the prosecution allegations. In their defence they produced one witness Trilok Singh. Eventually the trial Court acquitted Teja Singh, Mahendra Singh, Chanchal Singh and Karan Singh but convicted and sentenced the accused-appellants, Bishan Singh, Kishan Singh and Pakhar Singh, as stated above.

(3.) AGGRIEVED by the above verdict, accused Bishan Singh, Kishan Singh and' Pakhar Singh have taken this appeal. The contention of learned Counsel for the appellants is that when the accused were in fact charged under Sections 302/149, 324/ 149, 447/149 and 148, I. P. C, they could not have been convicted under Sections 304 (Part II), 447 and 324, I. P. C, simpliciter. Learned Deputy Government Advocate submitted that if the charge-sheet of the accused is read carefully, it would appear that they have been charged under Section 302,. I. P. C, simpliciter. Counsel for the State1 further argued that even if there is some error in framing the charges, it is curable under Sections 535 and 537, Cr. P C