ONKAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 has been filed by eleven accused-appellants, namely, Onkar S/o Molliya alias Mool Chand, Bansi, Onkar S/o Deviya, Ram Karan, Arjun, Latoor, Sanwalia, Chaturbhuj, Jamnalal, Jagram and Harphool, assailing judgment and order dated 04.10.1990 passed by learned Sessions Judge, Sawai Madhopur, in Sessions Case No.68/1983, whereby the accused-appellants have been convicted and sentenced as follows, <FRM>JUDGEMENT_261_LAWS(RAJ)5_2018_1.html</FRM>

(2.) This is a very old case arising out of an incident which took place on 25.02.1983. This is also a classic example how the victim party in their zeal to implicate large number of persons create difficulties for the court to segregate the truth from the falsehood to arrive at the conclusion as to who are the real culprits. The first information report, as per own admission of complainant Sualal (PW-1), was prepared with the help of local advocate Kripa Shankar on the basis of what was stated by Jamna Lal. And surprisingly, Sualal (PW-1) has stated that he was the eyewitness to the incident. Be that as it may be, the written report (Exhibit P-1) submitted by Sualal (PW-1) on 25.02.1983 at 10:00 AM contains names of as many as 46 accused and finally the charge-sheet was filed against 50 accused persons. The trial court, vide impugned judgment and order dated 04.10.1990, acquitted 39 accused and convicted 11 accused-appellants. It may be noted at the outset that out of those 11, six accused-appellants, namely, accused-appellant no.2 Bansi S/o Gendiya, accused-appellant no.3 Onkar S/o Deviya, accused-appellant no.5 Arjun S/o Mooliya, accused-appellant no.6 Latoor S/o Deva, accused-appellant no.10 Jagram S/o Bhoriya and accused-appellant no.11 Harphool S/o Nath have died during pendency of the appeal and therefore the appeal qua them abates and is liable to be dismissed as abated. Now the present appeal survives only in respect of five accused-appellants, namely, Onkar S/o Molliya alias Moolchand, Ram Karan S/o Kishangopal, Sanwalia S/o Ranglal, Chaturbhuj S/o Jagram and Jamnalal S/o Ramchandra.

(3.) Briefly stated, the facts of the case are that on the basis of said written-report, F.I.R. No.17/83 was registered at Police Station Chauth-ka-Barwara on 26.02.1983. It was alleged that at around 10:00 AM on 25.02.1983 the accused-party consisting of 46 persons had trespassed into the field belonging to Ramniwas, Rajaram and Arjun. The accused-party started cutting gram crop. The complainant-party objected to it, whereupon the accusedparty assaulted the complainant-party with sharp as well as blunt weapons giving merciless beating. On the basis of these allegations, the police registered a case under Sections 147, 148, 149, 307, 323, 379 and 447 of the Indian Penal Code (for short, 'the IPC') and commenced the investigation. In the evening of 25.02.1983, one injured Rajaram succumbed to his injuries and therefore offence under Section 302 IPC was further added. Injured persons, namely, Rajaram, Ramniwas, Arjun, Bansi, Ramswaroop, Smt. Narbada, Swarupi and Gendi were got medically examined. After death of Rajaram, postmortem was conducted. As many as 50 accused-persons were taken into custody. Statements of witnesses were recorded. Finally, the police submitted charge-sheet against all 50 accused-persons in the Court of Magistrate, Sawai Madhopur. Since the case was triable exclusively by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions Judge, Sawai Madhopur. The accused-persons, in their statements under Section 313 of the Code of Criminal Procedure, denied the charges and claimed trial. As many as 18 witnesses were examined on behalf of the prosecution. The accused-persons came out with specific plea that the crop had been sown by them. Since the land was in their settled possession, they had every right to harvest the crop. The complainant party had unlawfully trespassed into the field and prevented the accused-persons from harvesting their crop and thus the accused-persons had a lawful right to resist the unlawful acts committed by the complainant party. The defence examined Tikaram Meena as DW-1, who was posted as 'Girdawar' at the relevant time. After hearing the parties, learned Sessions Judge acquitted 39 accused-persons of all the charges and convicted and sentenced 11 accused-appellants in the manner indicated above. Hence the present appeal.