HARI SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS Criminal Appeal under Section 374 (2) Cr. P. C. is directed against the conviction and sentence awarded to the seven accused-appellants by the learned Additional Sessions Judge, Deeg in Session case No. 7/91 (43/91, 37/84) passed on 27lh Augusi. 1992. The accused-appellants have been convicted and sentenced as under:-- i) Accused appellant Hari Singh was convicted and sentenced for offence u/s 302 IPC to life imprisonment, fine of Rs. 5000/- and in default of payment of fine he shall have further to undergo 6 months S. I. for offence u/s 148 IPC to 6 months R. D. fine of Rs. 500/- and in default of payment of fine 1 months S. I. For offence u/s 447 IPC to 3 month R. l. fine of Rs. 500/- and in defaut it of payment of fine 1 month S. I. For offence u/s 324/149 IPC to 6 months RI, fine of Rs. 1000/- and in default of payment of fine 2 months S. I. For offence under section 323/149 IPC to 1 month R. I. For offence u/s 325/149 IPC to 6 months R. I. fine of Rs. 2000/- and in default of payment of fine 4 months S. I. and for offence u/s. 3/25 Arms Act to 6 months R. I. fine of Rs. 500/- and in default of payment of fine he shall have further to undergo 1 month S. I. ii ). Accused-appellants Bachchu & Mangal were convicted and sentencded for offence u/s 302/149 IPC to L. I. fine of Rs. 5000/- and in default of payment of fine 6 months S. I. For offence under section 148 IPC to 6 months R. I. fine of Rs. 500/- and in default of payment of fine 1 month S. I. For offence u/s 447 IPC to 3 months R. I. fine of Rs. 500/- and in default of payment of fine 1 month S. I. For offence under section 324/149 IPC to 6 months R. I. fine of Rs. 1000/- and in default of payment of fine 2 months S. I. each. For offence u/s 325/149 IPC to 1-1/2 years R. I. fine of Rs. 2000/- and in default of payment of fine 4 months S. I. and for offence u/s 323/149 IPC to 1 month R. I. each. iii ). Accused-appellant Leela was convicted and sentenced for offence under section 302/149 IPC' to L. I. fine of Rs. 5000/- and in default of payment of fine he shall have further to undergo 6 months S. I. For offence u/s 148 IPC to 6 months R. I. fine of Rs. 500/- and in default of payment of fine 1 months S. I. For offence u/s 447 IPC to 3 month R. I. fine of Rs. 500/- and in default of payment of fine 1 month S. I. For offence u/s 324 IPC to 6 months R. I. fine of Rs. 1000/- and in default of payment of fine 2 months S. I. For offence u/s 325/149 IPC to 6 months R. I. fine of Rs. 2000/- and in default of payment of fine 4 months S. I. and for offence u/s 323/149 IPC to one month R. I. iv) Accused appellant Man Singh was convicted and sentenced for offence u/s 302/149 IPC to LI fine of Rs. 5000/- and in default of payment of fine 6 months S. I. For offence u/s 148 IPC to 6 months R. I. fine of Rs. 500/- and in default of payment of fine one month S. I. For offence u/s. 447 IPC to 3 months R. I. fine of Rs. 500/- and in default of payment of fine one month S. I. For offence u/s 323/149 IPC to 1 month R. I. For offence u/s 324 IPC to 6 months R. I. fine of Rs. 1000/- and in default of payment of fine 2 months S. I. and for offence u/s 325/149 IPC to 11/2 yrs. R. l. fine of Rs. 2000/- and in default of payment of fine 4 months S. I. v ). Accused-appelicant /appellant Srichand was convicted and sentenced for offence u/s 302/149 IPC to L. I. fine of Rs. 5000/- and in default of payment of fine 6 months S. I. For offence under Sec. 148 IPCto 6 months R. I. fine of Rs. 500/- and in default of payment of fine 1 month S. I, For offence u/s 447 IPC to 3 months R. I. fine of Rs. 500/- and in default of payment of fine one month S. I. For offence u/s 324/149 IPC to 6 months R. I. fine of Rs. 1000/- and in default of payment of fine aaaaaa2 months S. I. For offence u/s 325/149 IPC to 11/2 years R. I. fine of Rs. 2000/- and in default of payment of fine 4 months S. I. and offence u/s 323 IPC to one month R. I. vi) Accused-appellant Harli was convicted for offence u/s 302/149 IPC to L. I. fine of Rs. 5000/- and in default of payment of fine 6 months S. I. For offence u/s 148 IPC to 6 months R. I. fine of Rs. 500/- and in default of payment of fine 1 month S. I. For offence u/s 447 IPC to 3 months R. I. fine of Rs. 500/- and in default of payment of fine one month S. I. For offence u/s 323/149 IPC to one month R. I. For offence u/s 324/149 IPC to 6 months R. I. fine of Rs. 1000/- and in default of payment of fine 3 months S. I. and for offence u/s 325/149 IPC to 11/2 years R. I. fine of Rs. 2000/- and in default of payment of fine 4 months S. I.

(2.) WITH regard to an incident of 4. 7. 84, which is said to have occurred between 6 to 7. 00 p. m. in village Bhooraka at Police Station Nagar, one Hari Singh s/o Mangli Gujar informant lodged a written report on 5. 7. 84 at 6. 30 a. m. and this report was received in the court at 9. 30 a. m. on 6. 7. 84. As per the F. I R. Ex. P-10, there was a litigation going on between the complainantiparty and the accused-party for last one year. On 4. 7. 84, The Tehsildar had come to visit the spot and after the Tehsildar had gone back, after visiting the spot, the appellant Hari Singh started telling in the village that Tehsildar would write in favour of the accused-party on the question of possession, and if the complainant-party i. e. Gujars would say any thing more they will be killed and further that the preparation had been made to kill the Gujars. It is further stated in the FIR that the land about which the dispute is going on is in the Khatedari of complainant-party measuring about 3/4 bigha, which is in possession of the complainant-party, but Mangal had taken the bullocks on the spot and had started ploughing the field and when Hari Singh's brother tried to stop him and told that the land actually bleongs to them and therefore it should not be ploughed by the accused-party, Mangal said that we will do so forcibly. On this juncture Hari Singh Meena, Man Singh, Bachchu, Leela Meena and Shri Chand , Harli Gujar of Booraka who were already prepared came armed with lathi, Farsi, Ballam and Katta. Hari Singh Meena was armed with Katta, Man Singh with Farsi, Leela with Ballam and rest of the persons were armed with lathis. At the moment they arrived at, Hari Singh Meena said that kill these Gujars today and all of them came upon both the brothers i. e. Hari Singh Gujar arid Girraj. Hari Singh Gujar says that he ran away and sought for the help and having heard his alarm Kalyan, Nihal Singh, Sheoram, Harbhan and Hari Ram Brahmin came to their help. Hari Singh Meena said that run away otherwise all of them will be killed. Hari Singh Meena opened fire on Kalyan by Katta which hit in his abelomen. Kalyan became unconscious and fell down. Lathi blows were also given to Kalyan while he was lying down. Nihal Singh and Girraj were also given blows on their body by Farsi, Ballam & Lathi and while intervening Sheoram, Harbhan and Hariram etc, also sustained injuries. Nihal Singh & Girraj also became unconscious as a result of injuries and they all were taken to hospital in Matador where Kalyan dies as they reached Alwar. The condition of Nihal Singh & Girraj was also serious and he had come to report the matter from Alwar and it was at the instance of Ram Singh Meena that they had come to beat them and Kalyan was killed. Ram Singh was also telling in the village that the disputed land was to be entered in their favour through Tehsildar, the land belongs to them and if Gujars come, they will be killed. On the basis of this report the case was registered under section 302,307,147,148 & 149 IPC and after the investigation the challan was filed. learned Additional Sessions Judge Deeg framed charges against each of the accused-appellant for the respective offences. They all denied the charges and claimed to be tried. The prosecution examined 17 witnesses and the statements of accused-appellants were recorded u/s 313 Cr. P. C. Four witnesses including two doctors were examined in defence. 43 documents have been exhibited in evidence of prosecution and documents Ex. Dl/a to D/27 were produced in defence. It appears from the original record that after marking the documents Ex. D- 1/a to Ex. D-18, further documents in defence which should have been marked as Ex. D-19 to Ex: D-27 have been again manged Ex. D-9 to Ex. D-17 and therefore in the paper-books which have been filed the documents beyond Ex-D-18 have been shown as Ex-D-19 to Ex. D-27, this mention is being made by us to avoid any confusion on this count and we have also taken further care to mention the dates on which such documents were exhibited while referring to them in the later part of the judgment. Learned Additional Sessions Judge Deeg after trial has convicted and sentenced seven accused-appellants vide judgment dated 27-8-92 as above rendered in Sessions case No. 7/92 (43/91, 37/84 ). Against this judgment and order of conviction and sentence the present appeal has been preferred.

(3.) EX. D/12 dt. 18. 1. 86 (referred in paper book as EX. D-22) is the site map which shows Khasra No. 117/148 with dotted lines between Khasra No. 117 and 120. We called upon both the sides to give the actual measurements of whole Khasra Nos. 117 and 120, but it is submitted before us that actual measurements have not come on record.