RAMPAL AND ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) On 9.2.95 the then Addl. Sessions Judge, Rajgarh District Alwar Mr. Abdul Hafiz Khan convicted Rampal, his brother Ram Karan, his son Chiranjee, Lala Ram and Mangia under sections 148 and 302 read with Sec. 149 Penal Code and sentenced them to rigorous imprisonment for one year each on the first count and to imprisonment for life and a fine of Rs. 100.00 or in default of its payment further rigorous imprisonment for one month each on the second count, at the same time he convicted them as well as Chotey Lal another brother of Rampal, Heeralal brother of Lala Ram and Herla another son of Ram Pal under section 447 Penal Code and sentenced each of them to simple imprisonment for three months further more he convicted the last named three accused Chotey Lal, Heerlai and Herla under section 323 Penal Code and the remaining accused under section 323 read with Sec. 149 Penal Code and sentenced each of them to rigorous imprisonment for one year directing that ail the substantive sentences of imprisonment were to run concurrently. Against their convictions and sentences the eight of them have filed the instant appeal.

(2.) Succinctly stated the prosecution case as embodied in the FIR lodged by Sanwal Ram PW 1 was that on the fateful day of 16.4.91 at about 5 A.M. a cow owned by Rampal accused strayed into the adjoining filed of the complainant side whereupon the complainant/informant Sanwal Ram PW 1 and Ghamsee deceased went over to the house of Rampal accused and there lodged a protest with him as well as with his brother Karan and Chotey Lal who at that time proclaimed that the matters would continue as before and at the same time held out a threat that they would deal with them. Thereafter at 9 a.m. or so Rampal, Ram Karan, Lala Ram, Chiranjee and Mangia, accused out of whom Ram Karan accused was armed with a piece of wood used as a support to link two legs of a cot and Mangia accused with a 'tanchia' and the rest with lathis arrived at the spot and immediately opened the attack and hit blows with their respective weapons on the head and other parts of the person of Ghamsi deceased and when Sanwal PW 1 complainant and Shrawan PW 2 tried to rush to the deceased's rescue they were set upon by one Mst. Teeja who gave a lathi blow on the complainant's left elbow then Herla accused rushed to the spot and gave a 'tachia' blow on the complainant's head, he was followed by Heeralal accused to the spot who on arrival gave a lathi blow on the head of Shrawan PW 2, then Chotey Lal accused approached Shrawan PW 2 & hit a lathi blow on his right shoulder. Thereafter Rampal, Ram Karan. Lala Ram, Chiranjee and Mangya accused belaboured the deceased with their weapons, causing him to collapse at the spot. At that time the duo Mohan Lal and Khillu arrived at the spot and on their challenging the culprits they took to their heels. The deceased was removed in an animal-driven cart to the Govt. Hospital at Rajgarh from where he was referred onwards to the Govt. Hospital at Alwar. In the Govt. Hospital at Alwar the deceased succumbed to his injuries at 5.40 p.m. the same day. Thereafter the FIR was lodged at 11 p.m. by Sanwal Ram PW 1. Autopsy on the dead body was performed by Dr. Mahendra Kumar Gupta PW 9 whose report is Ex.P 11. The case was investigated into by the police. In due course, the weapons attributed to have been carried and used by the accused were recovered from them in persuance of their respective disclosure statements after their arrest. On these facts after completion investigation the accused were challaned by the police and were committed to the court of Sessions to stand their trial by formal order of commitment passed by the ilaqa Magistrate. In support of its case the presecution examined a total of 14 witnesses including the two eye witnesses, the Doctor performing the post mortem and the two investigating officers S.I. Radhey Gopal, PW 13 and S.I. Ram Naresh Yadav PW 14. In their statements at the close of the prosecution case the accused denied the allegations against them and asserted that on that day Budha PW 3 and one Khillu were raising a earthen boundary wall in their field comprising khasra No. 55 and when on their protest neither the deceased nor the injured from the deceased side desisted they had called the villagers. They produced two witnesses namely Rampal DW 1 and Heeralal DW 2 in their defence. The result of the trial has already been noticed at the out set.

(3.) The arguments of the learned counsel for the appellants are (i) that the FIR was delayed, (ii) that the version as laid before the trial Court by the two eye-witnesses was at variance with that set out in the FIR in as much as according to two eye witnesses in Court the previous threat to deal with them had been held out by Rampal accused now appellant and the two others at the well and the deceased was belaboured and fatally assaulted the injured not in his field but while he was carrying back water from the well according to Sanwal Ram PW 1 and returning after drinking water according to Shrawan PW 2, (iii) that there was no 'sharp weapon injury on the deceased therefore 'tanchia' attributed to have been carried by Mangia appellant could not have been used by him in the fatal assault perpetrated on the deceased, (iv) that there were two blunt weapon injuries both on the head of the deceased which had proved fatal as the remaining third injury was an abrasion that could well have been caused by scuffle etc. and these two injuries could not well have been caused by as many as four accused appellants Rampal, Ram Karan, Lala Ram and Chiranji which falsified the prosecution version and indicated that Choteylal, Heeralal and Herla appellants had been roped in for good measure as they were from the same family, (v) that the investigating officer at the time he prepared the rough site plan of the spot had found a earthen boundary wall existing there which had been freshly raised and the same to have been freshly partially demolished which indicated that the quarrel had erupted when the accused side had protested over the rising of the earthen boundary wall in their field, (vi) that as there were injuires on the persons of the accused appellants two on the person of Rampal appellant a lacerated wound and an incised wound medico legal examination report of which is Ex. D. 4, six on the person of Chotey Lal appellant two lacerated wounds, three abrasions whose medico legal examination report is Ex.D. 2 and one injury on the person of Heera Lal appellant vide Ex.D. 3 which was a bruise resulting in a fracture, (vii) that in the cross case challan had been presented against Shrawan PW 2, Sanwal Ram PW 1, Budha, Khillu and Ghamsi, who was named as accused but had died, under sections 147, 148, 447, 323, 324 and 325 read with Sec. 149 IPC, the challan report being Ex.D. 6 and (viii) that the probability was that the deceased and the injured of this case had sustained their injuries while the appellant's side was exercising their right of private defence of their persons and property which they could not be said to have exceeded and therefore no offence was made out entitling the appellants to acquittal after acceptance of their appeal.