Judgment:
Jas Raj Chopra, J.
1. These two appeals; one by the State and the other by the accused-persons arise out of the same judgment rendered by the learned Sessions Judge, Sriganganagar on May 24,1975, where by, the learned lower court has acquitted accused Sultan and Dhonkal of all the offences with which they were charge by giving them the benefit of doubt. It has, however, held accused Bhanu guilty of the offence under Section 304 Part II, IPC and sentenced him to rigorous imprisonment for 5 years. He was also convicted under Section 447 IPC and sentenced to rigorous imprisonment of one month. Accused Surjaram and Hajari were convicted under Sections 447 and 323 IPC and Mst. Shanti and Mst. Saraswati were convicted under Section 447 IPC. However, looking to the circumstances of the case in which the offences were committed and having regard to the character of the accused and in the absence of any previous conviction recorded against them, the learned lower court has granted them the benefit of the Probation of Offenders Act. It has, however, acquitted all the accused-persons of the offences under Sections 302 and 302/149 IPC. Aggrieved against this judgment the Stale has preferred appeal against all the 7 accused-persons including Mst. Shanti and Mst. Saraswati with the prayer that all the accused, persons should have been convicted of the offence under Sections 302 or 302/149 IPC. It may be staged here that the State's appeal was not admitted against Mst. Shanti and Mst. Saraswati but it was, however, admitted against accused Hajari, Sultansingh, Bhanuram, Surjaram and Dhokalram. The accused Bhanu, Hajari, Surjaram, Mst. Shanti and Mst. Saraswati have also preferred appeal against their conviction.
2. The facts of the case briefly stated are; that one Sheolal Jat resident of Hanumangarh town had certain fields. Existing in his khatedari bearing Khasras No. 128/277 and 127/278. Sheolal had three daughters from his first wife Mst. Dhapu. Their names are Mst. Shanti, Mst. Saraswati and Mst. Girdawari. After the death of Mst. Dhapu, he married to Sona Devi. Mst. Sona Devi brought with her one son who was born to her by her earlier wedlock. She gave birth to one daughter Bhagwati, after her marriage with Sheolal. It is alleged that after the death of Sheolal, Mst. Sona Devi came in possession of his land and out of this land, she sold killas No. 19 to 22 of field bearing Khasra No. 128/277 and killas No. 3,4,5 and 7 of Khasra No. 127/278 situated in village Chak 18 HMH for a sum of Rs. 20,000/- by a registered sale-deed Ex. P 33 and handed over possession of these 8 killas to the purchaser Sardar Malsingh son of Sardar Suchhasingh Jat sikh resident of Hanumangarh. This sale deed was executed on January 28,1974. It is alleged that Malsingh and his sons cultivated Killa No. 7 and sown Guwar crop in that killa of field bearing Khasra No. 127/278. On the date of the occurrence i.e., May 23, 1974, Malsingh's son Kripalsingh was in that field. At about 10 of 11 a.m. his niece Mst. Pappi aged about 10 years brought his meals. He then went inside the Kotha and started taking his meals. At that point of time, Mst. Shanti and Mst. Saraswati came to Killa No. 7 and tried to destroy the Guwar crop soon by the complainant party. Kripalsing then came out of his Kotha and requested these ladies not to do so, whereupon, these ladies started abusing. It is alleged that accused Dhonkalram, Surjaram, Hajari, Bhanu and Sultansingh were hiding themselves in the Khala situated near that field. It is alleged that accused Sultansingh and Dhonkalram were armed with guns. On seeing this, Kripalsingh went inside the Kotha. Mst. Pappi, however, went and informed Mukhtiarsingh who was in their Dhani. Mukhtiarsingh immediately rushed to the spot and when he reached Killa No. 7, two fires were shot at him by accused Dhonkal and Sultansingh. However, he was not hit. Mukhtiarsingh fell himself down. Thereafter, all the accused-persons came out and accused Hajari, Surjaram and Bhanu started beating him with lathies and Gandasis. Accused Hajari and Surjaram had Gandasis with them whereas accused Bhanu was carrying a lathi with him. Mst. Shanti and Mst. Saraswati were also present at the spot. Sardara Singh who is father in law of Kripalsingh and Mukhtiarsingh also came at the spot and tried to intervene but the accused-pesons did not desist from beating. Mukhtiarsingh who became unconscious after receiving injuries on his head, was then shifted to Hanumangarh Hospital, where his injuries were examined and he was also treated for his injuries by Doctor Parasmal Jain. Later, he was shifted to Sriganganagr Hospital, where he died on May 27, 1974 at about 6.40 p.m. His post mortem was conducted by Dr. Ramlal Goyal. Certain recoveries were effected on the information of the accused-persons after their arrest and after usual investigation, the case against the accused-persons was challaned in the court of learned Judicial Magistrate Ist Class, Hanumangarh, from where, it was committed for trial to the court of Sessions Judge, Sriganganagar. The learned Sessions Judge charged the accused-persons as under:
(1) Hazari under Sections 447, 302/149, 147 and 148 IPC;
(2) Sultansingh under Sections 447, 302/149, 336, 147, 148 IPC and Under Section 27 of the Arms Act;
(3) Bhanuram under Sections 447, 302/149, 147 and 148 IPC;
(4) Surjaram under Sections 447, 302, 147 and 148 IPC;
(5) Dhonkalram under Sections 447, 302, 336, 147 and 148 IPC and Under Section 27 of the Arms Act;
(6) Mst. Shanti Under Section 447 IPC;
(7) Mst. Saraswati Under Section 447 IPC.
The accused-persons did not plead guilty to the charges and claimed trial, whereupon, the prosecution examined as many as 16 witnesses in support of its case. The statements of the accused-persons were recorded. They have taken a plea that Killa No. 7 was in their possession as it belonged to them, Mst. Shanti and Mst. Saraswati were in that field along with accused Hajari and Sultansingh. However, accused Hajari and Sultansingh went to cultivate another Julia and these two ladies were left there after taking their meals. On seeing them, Malsingh, Kripalsingh and Mukhtiarsingh etc. came there and started beating them, whereupon, Hajari and Sultansingh reached there. They requested them not to beat the ladies but their request fell on deaf ears They, therefore, gave beating to Mukhtiarsingh by small sticks used for driving camels. Later they returned to their own place. According to them, Bhanuram, Surjararm and Dhonkalram were not there. It is alleged that Surjaram who is an employee of Municipal Council, Hanumangarh was working in his office on that day. They examined 5 witnesses in their defence.
3. After hearing the parties, the learned lower court came to the conclusion that although Sultansingh has admitted that he has taken part in the beating but from the prosecution evidence, his participation in the beating has not been proved and therefore, accused Sultansingh was given the benefit of doubt. Accused Dhonkalram was also acquitted because it has not been proved that guns were used in the commission of the crime. The plea of alibi put forth by Surjaram was not accepted by the learned lower court and consequently, accused Hajari, Bhanu, Surjaram, Shanti and Saraswati were convicted as aforesaid. Accused Bhanu has been sentenced to different terms of imprisonment whereas the other four convicted accused-persons were given the benefit of the Probation of Offenders Act. It is against this judgment (hat the State as well as the accused-persons both have preferred appeals as aforesaid.
4. It may be pertinent to mention here that the principal accused in the case i.e. accused Bhanuram has died. An application has been filed by the learned Counsel for the accused Bhanu that accused Bhanu has died before about 3 years. This fact was not controverted by the learned Public Prosecutor or the learned Counsel appearing for the complainants and therefore the appeal against accused Bhanu abates.
5. We have heard Mr. Suresh Kumbhat, learned Counsel for the accused-persons, Mr. L.S. Udawat, learned Public Prosecutor for the State and Mr. B.R. Arora, learned Counsel for the complainants. We have meticulously gone through the record of the case.
6. Now we have to decide how far the findings of the learned lower court can be sustained on the basis of the record of the case.
7. At the very outset, we may state that the prosecution has examined three alleged eye witnesses, viz., PW 1 Kripalsingh, PW 3 Sardarasingh and PW 4 Mst. Pappi, at the trial. The presence of PW 3 Sardarasingh at the place of the occurrence has been disbelieved by the learned lower court firstly because he had no reason to come and stay with his son-in-law for over a period of one month and secondly in the FIR. Ex.1, it has not been mentioned that Sardarasingh was informed by Mst. Pappi to come to the place of the occurrence at that point of time. We are in agreement with the reasons put fort by the learned lower court for disbelieving the testimony of PW 3 Sardarasingh. So far as PW 4 Mst. Pappi is concerned, she has not witnessed the entire occurrence. She has left the place of the occurence before the shots were fired from the guns. Actually, she heard two gun shots from her own Dhani. The entire occurrence of beating is alleged to have taken place after the gun shots were fired and, therefore she has only witnessed the tres-pass made by Mst. Shanti and Mst. Saraswati in Killa No. 7. She has further witnessed the presence of two persons hiding in the Khala with guns. She, however, did not identify them at the trial as to who they were after that, she went to inform Mukhtiarsing and, therefore, as per her own admission, she has not seen the occurrence of beating or the firing of gun shots by the accused-persons. The entire occurrence has only been witnessed by one witness i.e. PW 1 Kripalsingh.
8. Now, we first take up the testimony of PW 1 Kripal Singh and PW 4 Mst. Pappi so far as it relates to accused Dhonkal and Sultansingh. It is alleged that they were armed with two guns and they fired from it at Mukhtiarsingh when he came from his Dhani to killa No. 7 PW 4 Mst. Pappi has already left before firing took place. Thus, we are left with the only testimony of PW l Kripalsingh so far as this aspect of the prosecution story is concernd. PW 1 Kripalsingh has stated that when Mukhtiarsingh came to killa No. 7 from their Dhani, accused Dhonkalram fired from his gun at him. The second fire was made by accused Sultansingh towards Mukhtiar Singh. Mukhtiarsingh fell himself down on the ground. Dhonkalram & Sultan Singh fired at him from a distance of about 100-150 yards. Kripalsingh has stated that he saw the incident of firing from inside the Dhani as Killa No. 7 was visible to him from inside the Dhani. According to him, Mukhtiar Singh came there 15-20 minutes after arrival of the two ladies. He was fired at by the accused-persons as soon as he was entering Killa No. 7. Sultan Singh was towards the southern side of Mukhtiarsingh whereas Dhonkalram was on his eastern side. Sultansing, according to him, was on the boundary of Killa No. 14 whereas Dhonkalram was sitting of the Medh of killa No. 7, when they both resorted to fire. Now, he has come with a case that actually gun fires were aimed at Mukhtiarsing. He has, however, been confronted with portion A to B of his FIR Ex. P. 1, wherein he has stated that Sultansingh and Dhonkalram fired in the air from a distance of about 100-150 yards. He was asked to explain how his court statement is against the version given by him in FIR. He has stated that he actually told the police that the accused persons fired at Mukhtiarsingh. He cannot say how the poilce recorded in the FIR that these two persons resorted to firing in the air. When he has been cross-examined by Shri Jaigopal Malhotra, Advocate, he has stated that Sultansingh and and Dhonkalram resorted to firing not after coming out of the Khala but actually, they were sitting outside the Khala. He then changed his version and has stated that actually they were sitting in the midst of the Khala and they resorted to firing while sitting in the Khala. His attention was drawn to portion A to B of his police statement Ex. D. wherein he got it recorded that Sultansingh and Dhonkalram were hiding themselves inside the Khala. On observing Mukhtiarsingh coming in Killa No. 7, they came out of the Khala and fired from the guns. Actually, the entire incident of firing is based on the testimony of this one witness and he has given three versions to how the occurrence has taken place. His statement before the police in portion A to B of Ex. D 1 was that these persons were sitting inside the Khala and at the time of firing, they came out of the Khala and fired at Mukhtiarsingh. His second version is that they were not sitting in the Khala but were actually sitting outside the Khala when Mukhtiarsingh came and they fired from outside the Khala. His third version is that they were sitting in the midst of the Khala i.e. inside the Khala and they fired at Mukhtiarsingh while sitting inside the Khala itself. When the case is based on the testimony of a single witness, such a shifting version makes his testimony entirely uncreditworthy. In the FIR Ex. P 1, portion A to B, he got it recorded that actually these two persons fired in the air whereas at the trial, he has improved his version and has stated that these two accused persons aimed their guns at Mukhtiarsingh and then fired at him. This improvement also makes his testimony unbelievable.
9. It is alleged that two guns were used in the incident. Only one gun belonging to Surjaram has been recovered which is a licenced gun. It is alleged that accused Sultansingh gave information about the recovery of the gun but the gun was recovered from the house of Surjaram through the agency of Surjaram's wife. The second gun has not been recovered. All these facts are sufficient in our view to hold that the case of the prosecution so far as it related to the use of guns in the incident by accused Dhonkal Ram and Sultansingh, is doubtful and the learned lower court was justified in acquitting these two accused-persons by giving them the benefit of doubt.
10. The case of the prosecution so far as it relates to the actual beating to Mukhtiarsingh by sticks and Gandasis by accused Sultansingh is concerned, it will be dealt with separately when we deal with that part of the prosecution case.
11. Now, we take up the case of the prosecution so far as it relates to the actual infliction of the injuries to Mukhtiarsingh by Mst. Shanti and Mst. Saraswati. In this respect, we may gainfully refer to the testimony of PW 11 Dr. Parasmal Jain. He has stated that on May 23, 1974, at about 1.30 p.m, he examined the injuries of Mukhtiarsingh and found the following 7 injuries on his person:
(1) Lacerated wound longitudinal 1-1/2' x 1/8' x 1/8' in the middle of scalp 4-1/2' from right ear;
(2) Hematoma 3' x 1 1/2' on the upper part of right eye;
(3) Hematoma 2-1/2' x 1/4' on the lower part of right eye on outer aspect;
(4) Lacerated wound 3/4' x 1/10' x 1/10' on the lower lib;
(5) Bruise 6' x 1' on the left side of chest upper part below the clevical;
(6) Bruise 5' x 1' on the left scapular region obliquely;
(7) Abrasion 1-1/2' x 1-1/2' on the left thigh lower part posteriorly 1-1/2' above the knee line.
According to him, injuries No. 3 to 7 were simple in nature. For injuries No. 1 and 2, he advised for X-ray. He has proved injury report Ex. P 17. All these injuries were caused by blunt weapon. According to him, these injuries could be inflicted by blunt side of the Gandasi, Ex. A 2 and Ex. A 6. He also got X-ray report of the injuries of Mukhtiarsingh which has been marked Ex. P 20 and found that injury No. l was grievous and rest of the injuries were simple, Certain attempts were made to record his dying declaration but Mukhtiarsingh only regained consciousness for a very short time and, therefore, all attempts of recording his dying declaration failed. Mukhtiarsingh, however, died on May 28, 1974, Autopsy on his dead body was conducted on May 28, 1974 at 10 a.m. by Dr. Ramalal Goyal, who has proved the post-mortem report Ex. P 36. He also found 7 external injuries as observed by Dr. P.M. Jain. However, injury No. 1 has been recorded as a stitched wound. On internal examination, he found that there was depressed fracture of right parietal bone and coronal suture and linear fracture of orbital bone. Membrances were congested having a clot of the size of 6' x 3' x!l/4'. The brain was congested. There was a depression on the parietal lobe and also depressed with blood clot. The Doctor opined that the cause of death was compression injury of skull and mode of death was coma. The Doctor further opined that all these injuries were sufficient to cause death in the ordinary course of nature, and injury No. 1 alone was sufficient to cause death in the ordinary course. It is therefore, clear from the testimonies of these Doctors that Mukhtiarsingh received above mentioned 7 injuries on his parson and he died because of that. He remained alive for only 5 days after he received these injuries on his person.
12. PW 11 Dr. Parasmal Jain also examined injuries of Mst. Shanti wife of Hazari and 'Mst' Saraswati wife of Surjaram on the same day i.e. May 23,1974 at 3 p.m. and 2 p.m. respectively. He found the following injuries on the person Mst. Shanti:
(1) Hematoma 2' x 1-1/2' on left supra scapular region;
(2) Hematoma 1' x 1' on right side of posterior part of scalp 2-1/2' from right year's pinna;
(3) Lacerated wound 1-1/2' x 1/8' x 1/8' on the base of the left little finger;
(4) Swelling 1-1/2' x 11-/4' on the right thinner region.
All these injuries were simple and caused by blunt weapon. According to the Doctor, these injuries were caused within a period of 6 hours. Mst. Saiaswati had only one injury i.e. Bruise 1/2' x 1/2' on left supra scapular region; This injury too was simple and was caused by blunt weapon. Its duration was within 6 hours.
13. We next proceed to scrutinise the case of the prosecution regarding possession on killas No. 7 of field bearing khasra No. 127/278. P.W. 2 Malsingh has come with case that this killa alongwith killas No. 2, 3, 4 and 5 of this square and killas No. 19 to' 22 of khasra No. 128/277 were sold to him with possession vide registered sale deed Ex. P. 33 by Mst. Sona Devi wife of Sheolal in whose name these fields stand recorded in the record of rights. Mst. Sona Devi (P.W. 16) has, however, stated that she only sold 4 killas to the Sardars for a sum of Rs. 7,000/- and not 8 killas for a sum of Rs. 20,000/- as recorded in Ex. P. 33. Her statement is against the sale-deed and, therefore, we are inclined to place reliance on the testimony of P.W. 2 Malsingh and P.W. 1 Kripalsingh that actually Mst. Sona Devi sold them 8 killas mentioned above. The learned lower court has, however, held that actually possession of these 8 killas was handed over by Mst. Sona Devi to Malsingh and his sons. According to the learned lower court, the crop of these killas was harvested by the complainant party and it is because of this that a case under ss. 379 and 447 I.P.C. was registered against Malsingh and his sons, Moreover. Mst. Girdawari filed a suit for injunction against Malsingh and his sons so as not to disturb the possession of Mst. Girdawari and her sisters from Killa No. 7. An injunction was issued by the learned Sub-Divisional Magistrate, Hanumangarh in favour of Mst. Girdawari and against Malsingh and his sons restraining Malsingh and his sons not to interefere with the possession of Mst. Girdawari and her sisters on killa No. 7. The learned lower court on the basis of these facts came to the conclusion that actually possession was with Malsingh and his sons and, therefore, the suit for injunction had to be brought by Mst. Girdawari and a case for commission of theft of the harvested crop had to be instituted against them. With all regards, we are unable to agree with the reasons given by the learned lower court. P.W. 13 Thakarmal was the Patwari of Hanumangarh town at the relevant time. Chak No. 18 H.M.H. was in his circle. He has stated that in Chak No. 18 H.M.H. SheoJal owned 18 killas and 19 biswas of land. The Girdawari was done in the name of the owner. He does not remember whether the mutation of these killas was recorded in the name of Mst. Sonadevi, Mst.Bhagwati, Mst. Shanti, Mst. Girdawari & Mst. Saraswati. However when his attention was drawn to his police statement Ex. D. 7 portion A to B in which he has got it recorded that on April 1, 1974, such a mutation was recorded in the name of these 5 persons regarding these 18 killas and 19 biswas of land, he has stated that on that day, he gave the statement to the police on the basis of the record and as the record of the mutation was not with him on the day his statement was recorded or not, he cannot lay whether mutation was effected in favour of these 5 persons. If his statement in the police was recorded on the basis of the record it clearly shows that it was a true statement given by him on the basis of the record and therefore, it should be taken as proved that actually these 18 killas and 19 biswas of land was mutated in the name of all these 5 persons on the death of Sheolal on April, 1974. When the land has been mutated in the name of these 5 persons they bad become co-sharers of this land. Mst. Sona Devi has categorically stated before the learned lower court that she filed no suit for partition and no partition took place amongst them even on the basis of their mutual consent and therefore, when all were co-sharers of these about 19 bighas of land holding l/5th share each. Mst. Sona Devi had no right to sell 8 bighas of this land because she could own less than 4 bighas of land as a co-sharer on the basis of the mutation recorded in her favour. Moreover, without partition, she had no authority to sell specific killas. P.W. 1 Kripalsingh has admitted that out of these 8 killas purchased by his father, wheat crop was standing in 5 of the killas which included killa No. 7. P.W. 2 Malsingh has also admitted that out of these 8 killas, 5 killas had standing crop and three of them were empty. Both of them were not definite as to who had cultivated these 5 killas. The sale was effected in their favour by Mst. Sona Devi vide registered sale deed dated January 28, 1974. Mst. Sona Devi has further admitted that she never visited this land and, therefore, it is certain that she had not cultivated this land. It was Mst. Girdawari, who brought a suit against Malsingh and his sons in the Court of Asst. Collector, Hanumangarh The learned Assistant Collector issued an injunction on February 1, 1974, which was served on Malsingh etc. on February 11, 1974. It was in favour of Mst. Girdawari and her sisters and against Malsingh and his sons not to interfere with the peaceful possession of Killa No. 7 of the field bearing Khasra No. 127/278 of Chak 18 H.M.H. This ad-interim injunction issued by the learned Assistant Collector has not been challenged by way of appeal or revision by the complainant party i.e. Malsingh and his sons. No effort was made to get this injunction vacated. The issuance of injunction in favour of Mst. Girdawari and her sisters clearly establishes that they were in possession of Killa No. 7 of the disputed field and Malsingh and his sons were restrained to interfere with their peaceful possession. In face of this Court's order it is difficult to hold that the possession of Killa No. 7 was handed over to Malsingh and his sons by Mst. Sona Devi. We have already observed that crop of killa No. 7 was not cultivated by Mst. Sona Devi because she had never visited this field. On the strength of the injunction issued by the learned Assistant Collector, Hanumangarh, it can be said that actually crop was sown by these three ladies i.e. Mst. Girdawari, Mst. Shanti and Mst. Saraswati who were daughters of Sheolal from his first wife Mst. Dhapo. This possession was further asserted by these ladies when Malsingh and his sons had forcibly cut the crop of Killa No 7 inspite of the injunction issued against them restraining them from interfering with the peaceful possession of Mst. Girdawari and her sister on Killa No. 7. The police registered a case under ss. 379 and 447 I.P.C. and challaned it against Malsingh and his sons in the Court before this incident. If actually, Malsingh and his sons were in possession, there was no ground for hauling Malsingh and his sons before a court of law for the. offence under ss. 379 and 447 I.P.C. Simply because these persons in their anxiety to get possession encroached upon killa No. 7 and took away the harvested crop forcibly, it cannot be said that they were in possession of the field. If somebody takes the law into his hands and commit illegality, he cannot be given advantage of his own acts of omission and commission. There was a clear cut injunction, issued by the Court that possession of killa No. 7 shall be with Mst. Girdawari and her sisters and so, Malsingh his sons had no right to enter into Killa No. 7. Considering all these facts and particularly the theft of the harvested crop clearly shows that the possession of Killa No. 7 was with Mst. Girdawari and her sisters and not with Malsingh and his sons.
14. P.W. 14 Harnamsingh has admitted in his cross-examination that he enquired about the possession of this Killa No. 7 of Khasra No. 127/278 of Chak 18 H.M.H. and he was informed by Cartel Patwari that in that year, the watering of the field was done by Mst. Shanti, Mst. Saraswati and Mst. Girdawari and that fact stands recorded in the record of Canal Patwari. All these facts clearly show that Mst. Girdawari and her sisters were in possession of Killa No. 7 but as Mst. Sona Devi out of her greed and without any authority sold this killa to Malsingh and his sons, they were trying to forcibly take possession of it. We therefore, disagree with the learned lower court and hold that actually, Mst. Shanti, Saraswati and Girdawari were in peaceful possession of Killa No. 7 Square No. 127/278.
15. Now, we take up the case of the prosecution regarding the actual occurrence. P.W. 1 Kripalsingh has stated that he has cultivated the Guwar crop in this killa No. 7 a day before the occurrence and on the day of the occurrence, he was ploughing another killa. At about 10 or 10.30 a.m., his cousin Mst. Pappi came there with his meals. He went to his Dhani situated in killa No. 4 to take his meals. When he was taking his meals sitting inside the Dhani, Mst. Shanti and Mst. Saraswati came to killa No. 7 and started ploughing the field which was earlier ploughed by him and the Guwar crop was already sown by him in the field. He then asked these ladies not to do so. They started abusing. On seeing some persons hiding in the Khala, he went inside bis Dhani. However, Mst. Pappi went and informed Mukhtiar Singh came at killa No. 7. We need not discuss the testimony of firing of two gun-shots by Dhonkalram and Sultansingh when Mukhtiarsingh was entering in Killa No. 7 because we have already discussed it earlier and have rejected it. It is alleged that when Mukhtiarsingh went inside Killa No. 7 and asked these ladies not to cultivate this field, both these ladies who were armed with sticks started beating him. Accused Hajari, Bhanu and Surjaram were also there. Bhanu was armed with a lathi and Surja and Hazari were armed with Gandasis. They, then gave beating to him. According to him, Bhanu gave a lathi blow on the head of his brother. He cannot say whether Surjaram and Hazari used the Gandasis from its sharp side or its blunt side but before these persons joined the beating these ladies have already inflicted 6-8 blows each to Mukhtiarsingh. Dr. Parasmal Jain has found only 7 injuries on the person of Mukhtiarsingh and one of them is a head injury which is grievous and rest of them are simple. As stated above P.W. 1 Kripal Singh is the only eye witness of the occurrence. He has neither stated in the F.I.R nor in his police statement Ex. D. 1 that Mst. Shanti and Mst. Saraswati took any part in beating given to Mukhtiarsing. In the FIR the version of Kripal Singh was that the wives of Surjaram and Hazari were also standing nearby. Actually, the beating was given by only Surjaram, Hazari and Bhanu and not by these ladies. To the same effect is his police statement Ex. D. J. It is, therefore, clear that he has made an improvement at the that these two ladies also took part in the beating and, therefore, to this extent, his testimony is not reliable.
16. It is true that Hazari and Surjaram have stated in their statements under Sections 313 Cr.PC that they actually gave beating to Mukhtiar Singh because his father Malsingh and his brother Kripalsingh encroached killa No. 7 where Mst. Shanti and Mst. Saraswati were ploughing. Mukhtiarsing started beating Mst. Shanti and Mst. Saraswati. These ladies cried. On hearing their cries. Surjaram and Hazari who were ploughing the field in some other killa came running to killa No. 7. They asked Mukhtiarsingh not to beat the ladies. They even tried to separate him from them but when their efforts failed, they gave beating to Mukhtiarsingh. The accused party has, therefore, come with a case of right of private defence. Before we discuss the testimony of the defence regarding right of private defence, we may mention here that only eye witness of the occurrence Kripal Singh (PW 1) has not stated that Sultansing took any part in giving beating to Mukhtiarsingh. He is the sole eye witness and his consistent version has been that Sultansingh did not take part in beating. When the prosecution evidence fails regarding participation of accused Sultansingh, he cannot be held guilty on the basis of his admissions made in his statement under Section 313 Cr. PC. We, therefore, agree with the learned lower court that this part of his testimony under Section 313 Cr.PC cannot be availed by the prosecution for holding him guilty of the offence of beating.
17. PW 1 Kripalsingh was specifically asked whether he saw any injuries on the person of Mst. Shanti and Mst. Saraswati. He has flatly denied that he saw any injuries on the person of Mst. Shanti and Mst. Saraswati. Dr. P.M. Jain has examined these ladies on the same day and 4 injuries were found on the person of Mst. Shanti and one on the person of Mst. Saraswati. We have already held that actually killa No. 7 was in possession of Mst. Girdawari and her sisters. They bad a right to cultivate this field but it appears that Mukhtiarsingh came there and asked these ladies not to cultivate killa No. 7 as it has been sold to his father by Mst. Sona Devi. Probably the ladies did not accede to his request and, therefore, he resorted to beating them. It is because of this that these ladies received injuries as stated by accused Hazari and Sultajnsingh and when the ladies cried, probably Hazari, Surjaram, Bhanu and others came to the scene of the occurrence and gave beating to Mukhtiarsingh. The ladies were thus beaten and, therefore, they could not have taken part in the bearing. When Mukhtiarsingh has criminally trespassed in killa No. 7 and has given beating to the ladies, the accused party was within its right to inflict grievous injuries to. Mukhtiarsingh in exercise of their right of private defence of person and property.
18. The question whether Bhanu who is alleged to be the author of the head injury has exceeded his right of private defence or not has become academic. We need not detain ourselves in discussing this part of the testimony of the prosecution because he has already expired. The other accused persons cannot be held guilty of the offence under Section 447 IPC because the field belonged to and was in possession of Mst. Shanti, Mst. Saraswati and Mst. Girdawari. Causing of simple injuries to Mukhtiarsingh by any of the accused persons cannot lead to any criminal offence, became this much of beating could be given by the accused party in exercise of their right of private defence of person as well as property. The learned public prosecutor has admitted that in this case, application of Section 34 or 149 IPC cannot be made because the accused persons did not come to the scene of the occurrence together. As per the prosecution testimony, they came from different side and at different times and, therefore, the question of common intention or common object cannot be held as proved in this case. May be that accused Bhanu might have exceeded his right of private defence of person as well as property but that is of no consequence now as he has already expired. The other accused persons, therefore, cannot be held guilty of the offence under Section 323 IPC also.
19. We would like to discuss the case of accused Surjaram separately because it was strenuously argued by the learned Counsel appearing for the accused appellants that actually he did not take part in the occurrence. At that time he was in the Municipal Board's Office at Hanumangarh. PW 1 Kripalsingh has admitted in his cross-examination that he did not see Surjaram landing any blows on the person of Mukhtiarsingh. He has only given a general statement that he only took part in beating but in his cross examination he has categorically admitted that he saw only infliction of two blows to Mukhtiarsingh one by accused Bhanu and the other by accused Hazari. For the rest of the injuries, he cannot say who inflicted which particular injury. Accused Surjaram has taken a plea that he was actually attending his duties as a LDC in the Municipal Board, Hanumangarh town at the time of the incident. He has examined DW 2 Liladhar in his defence who was also working as LDC in the Municipal Board with him at the relevant time. According to this witness, accused Surjaram was present in the Muuicipal Board from 7 a.m. to 1 p.m. on the day. He disposed of certain work. The attendance register also bears his signatures and his signatures have been proved by him as also by PW 2 Gopiram. PW 2 Gopiram was working as Revenue Officer in Municipal Board Hanumangarh at the relevant time and he has supported the testimony of DW 1 Lila Dhar. He proved his attendance register Ex. D 15. According to him, Surjaram had dealt with file No. 233 of 1967 on that day and the Office Note which he has recorded on that file was put before him and he too, has sent it for approval to higher officers. That note has been marked Ex.D. 9. DW 3 Chiman Lal Arora is a resident of Hanumangarh Town. He visited Municipal Board Office for his own work on May 23, 1974 at about 9.30 a.m. on that day. He has stated that on the relevant day, Surjaram met him in the Office. He stayed in the office for about 1-1/2 hour on that day. He got Ex. D 13 notice issued which was filed up by accused Sultansingh and then he came back. PW 5 Bachanaram was working as Executive Officer of the Municipal Board at the relevant time. He too has categorically stated that the accused Surjaram was in the Office from 7 a.m. to 1 p.m. on the relevant day. These witnesses have been throughly cross-examined but their testimony could not be shattered in any way. We, therefore, feel that the learned lower court was not justified in brushing aside this testimony only on the ground that he was interested in the disputed field and the disputed field is not far away from the Municipal Board and, therefore, he might have left the office and took part in the occurrence. Such a conclusion is conjectural and is not borne out from the evidence led in the case. The learned lower court has placed implict reliance on the testimony of PW 1 Kripalsingh. We have critically examined the testimony of PW 1 Kripalsingh and had we have found that at many places, he has tried to make improvements and has also changed his version at the trial regarding the facts which he has stated earlier in his previous statements. In the face of this formdaible evidence of alibi produced by accused Surjaram, the learned lower court was not justified in taking the view that the plea of alibi cannot be sustained.
20. The result is that the appeal filed against accused Bhanu abates because of his death, and it is dismissed as having abated. The appeal filed by the State against accused Hajari, Sultansingh, Surjaram and Dhonkalram fails and is hereby dismissed. So far as the appeal filed by the accused appellants Hajari, Surjaram, Mst. Shanti and Mst. Saraswati is concerned, it is allowed. The conviction of the accused-appellant Surjaram and Hajari for the offence under Sections 447 and 323 and Mst. Shanti and Mst. Saraswati for the offence under Section 447 IPC is set aside and they are acquitted of the said offences. The accused-appellants are already on bail an they need not surrender to their bail-bonds. Their bail-bonds stand cancelled.