KAMLA AND ORS. Vs. STATE

JUDGEMENT

(1.) THIS appeal is directed against the judgment passed by the Additional Sessions Judge, Dungarpur dated 1 -3 -1977. By that judgment the learned trial judge convicted the appellant Kamla under rection 147, 325 and 447 IPC and sentenced him to one year's rigorous imprisonment on the first count, one year's rigorous imprisonment on the second count and one month's rigorous imprisonment on the third count. The appellant Hemji was convicted on the offence under Section 148, 324, 325/149 and 447 IPC and sentenced to 1 year's rigorous imprisonment on the first count, six month's rigorous imprisonment on the second count, one year's rigorous imprisonment on the third count. The appellants Roopa and Dhoolia were convicted for the offences under Section 147, 325/149 and 447 IPC and sentenced to one year's rigorous imprisonment on the first two counts each, six months Rule 1 on the third count and one month RI on the fourth count. Appellants Panchya son of Mawa, Panchya son of Hemji, Smt. Lalki, Smt. Nathi and Smt. Manki were given benefit under Section 4 of the Probation of Offend Act and were directed to execute personal bond for an amount of Rs. 1,000/ - with one surety in the like amount to maintain peace and be of good behaviour for a period of one year.

(2.) BRIEFLY stated the facts of the case giving rise to the trial of the appellants and the present appeal are as under on 21 -12 -74 a report was filed by the complainant Pemji PW 1 at Police Station, Aspur to the effect that he had been allotted 8 bighas of land at 'Chhapria ka Pather' at Munja Gol 5 or 6 years back and since then he was in cultivatory possession of the the same. That, on 21 -12 -74 the accused party started ploughing field biloaging to the complainant. That, when Dhaniya, cousin of the complainant went to restrain the appellants from ploughing the field, they gave him a beating with axe, lathis and stones. At this Pemji PW 1 went there. He was also given, a beating. Thereafter Amra Nathu, Heera and Gautam also reached there and they were also given a beating by accused party. That, the accused took to heels. That, the injured have been brought to the Police Station. The police registered a case under Section 147, 148, 447, 307, 323 and 324 IPC. The injuries of the members of the complainant party were examined by Dr. Nand Kishore (P.W. 12). Nathu, Gautam and Dhaniya are said to have sustained fractures on their arms and the remaining injured persons had simple injuries on their persons. The SHO Chunni Lal (PW 14) went to the filed of occurrence end inspected the stte. He prepared the site inspection memo Ex. P. 1 and site plan Ex. P. 2. During the course of investingation lathis were recovered at the instance of the appellants in pursuance of the information furnised by them. Upon completion of necessary investigation charge -sheet against the appellants was filed in the Court of Munsiff and Judicial Magistrate Dungarpur. The learned Magistrate finding it to be a case exclusively triale by the Court of Sessions committed the appellants to the Court of Sessions Judge, Udaipur to stand their trial. The Learned Sessions Judge, transferred the case to the Additional Sessions Judge, Dungarpur for trial. The Additional Sessions Judge Dungarpur charge -sheeted the appellants for the aforesaid offences and recorded their plea. All of them denied the indictments and claimed to be tried. To substantiate its case prosecution examined 14 witness -in -all. All the appellants in their statements under Section 313 Cr. P.C. totally denied the allegations levelled against them. Smt. Manki, Panchyia son of Hemji stated that the disputed field belonged to them. The appellant Hemji stated that the disputed field was allotted to him and the neighbouring field belonged to Pemji. That, the party of Pemji had come to the field belonging to him (Hemji). He also stated that Pemji went to grab his field and has, therefore, instituted a false report against them. No defence witness was examined.

(3.) THE learned Counsel for the appellants strenuously contended that there is evidence of Patwari Bhagwatilal PW 10 to the effect that one part of arezi No. 2705 was allotted to Pemji complaiant and the other part was allotted to appellant Hemji and intention of the complainant Pemji to grab the whole of the land is evident. Mr. Sharma submitted that the prosecution could not substantiate its case that the place of occurrence belonged to and was in possession of Pemji at the relevant time and, therefore, there arises no question of any criminal tresspass by the appellants over any body's a field, nor can it be said to be a case of unlawful assemblance of the appellants to commit any crime. The learned Counsel next argued that there is no specific evidence about any specific act of a particular accused. That, the accused party had sustained injuries at the hands of the appellants but the police did not care to get their injuries examinad.