Judgment:
Jas Raj Chopra, J.
1. This is an appeal against the judgment of the learned Addl. Sessions Judge No. 2, Jodhpur dated January 27, 1978 whereby the learned lower court held the accused appellants guilty of the offences as under:
(1) Karim Khan : Under Sections 325, 147, 323/149, 435/149 IPC; (2) Bhagwan Singh : Under Sections 435, 147, 325/149, 323/149, IPC; (3) Inder Singh, (4) Roop Singh, (5) Saitan Singh, (6) Gani Khan, (7) Mehardin, (8) Bhoore Khan : Under Sections 147, 323, 435/149, 325/149 IPC; (9) Safi Khan : Under Sections 147, 435/149, 325/149, 323/149, IPC.
Out of these 9 accused persons, Bhagwan Singh, Safi Khan and Gani Khan have been given the benefit of Probation of Offenders Act and, therefore, they have preferred no appeal.
2. The remaining accused persons have been sentenced by the learned lower court as follows :
(1) Karim Khan Under Section 325 IPC : 2 years' R.I. and a fine
of Rs 200/-, indefault to undergo 2 months'
simple imprisonment,
Under Section 147 IPC : one year R.I. Under
Section 435/149 IPC : 6 months R.I. and a fine
of Rs. 200/- in default, to undergo 2 months
simple imprisonment,
Under Section 323/149 IPC : 6 months R.I.
(2) Inder Singh ) Under Section 325/149 IPC : 2 years' R.L and
(3) Roop Singh ) a fine of Rs. 200/-, in default to undergo 2
(4) Saitan Singh ) months simple imprisonment,
(5) Mehardin Under Section 147 IPC one year R.I.
(6) Bhoore Khan Under Section 435/149 IPC 6 months R.I. and a
fine of Rs. 200/-, in default, to undergo 2
months simple imprisonment,
Under Section 323 IPC 6 months R.I.
All the substantive sentences were ordered to run concurrently.
3. The facts necessary to be noticed for the disposal of this appeal briefly stated are that the fields bearing Khasras No. 48 and 49 are situated in village Meghlasiya. Moti Ram and Magna Ram, etc., are living in a Dhani situated in two biswas land of Khasra No. 49. They claimed that the field bearing Khasra No. 48 is also in their cultivatory possession. It is alleged that on July 19, 1976, at about 3 p m, all the 9 accused persons along with some other persons came to field bearing Khasra No. 48 with 8 ploughs. They started cultivating the field from its southern side. At that time, Moti Ram, Ghewar Ram, Magha Ram and Alla Ram were present in the Dhani. They asked the accused persons not to do so but the accused persons did not listen to them. On this, the complainant party went to its own Dhani and sat there. After about 2-3 hours, the accused-party started ploughing the way of leading to the Dhani of complainant party. On this, the complainant party again asked the accused persons not to do so. It is alleged that accused Bhagwan Singh told them that they will not allow them to come out of the Dhani. After that, he lit fire to the thorn fencing of the Dhani by which some portion of the thorn fencing and a heep of the grass were completely burnt. The accused persons them entered into the Dhani of the complainant-party and there, they gave beating to Motiram, Magharam, Ghewarram, Mst. Rami and Mst. Bhanwari. Magharam, Motiram and Ghewerram received grievous injuries and Mst. Rami received simple injuries. It is alleged that Mst. Bhanwari and Chhotiya also received injuries but their injury reports have not been produced. After this, the accused persons ran away from the spot. It will be useful here to mention that this field has been recorded as Tanaja from the year 1975 and as per the orders of the SDO and Tehsildar, it was recorded that 1/2 of the field is cultivated by the complainant party and 1/2 of the field as cultivated by accused Bhagwansingh and Mst. Dhapu etc. It is alleged that while leaving the place of occurrence, the accused persons asked the complainant party not to come out of the Dhani otherwise they will kill them. However, Allaram and Antaram come there in the night and when they saw the condition of the injured persons, they went to PW 4 Binjaram who was working as a labourer in Gedero-ki-Dhani. PW 4 Binjaram then submitted a written report Ex. P. 9 to the Superintendent of Police, Jodhpur on July 20, 1976. The report was then sent to P. S. Jhanwar for necessary, action.
4. On the basis of this report, a case Under Sections 147, 148, 149, 435, 323 and 447 IPC was registered. The madical examination of the injuries of Magharam, Motiram Ghewarram and Mst. Rami was got conducted on 20th July itself. The injuries were examined by Dr. P. Dayal, Medical Jurist Mahatma Gandhi Hospital, Jodhpur. Tne X-ray examination of the injuries was conducted by Dr. Gopiram Agrawal on July 22, 1976. The injury reports of Magharam, Motiram, Ghewarram and Mst. Rani have been marked Ex. P. 1, 3, 5 and 6 respectively. The injuries on the person of the accused-persons were also examined by Dr. P. Dayal. The site was also inspected. The copy of the Khasra Girdawari has been marked Ex. P. 21 A. The site inspection memo has been marked Ex. P. 22. The blood stained clothes of Motiram and Magharam were seized vide Memos Ex. P. 23 and 24 respectively. Ex. P. 9/1 is the Formal FIR recorded on the basis of Ex. P. 9. After usual investigation, the Police challaned the case against all these 9 accused-persons.The accused persons did not plead guilty to the charges and claimed trial, where upon, the prosecution examined in all 12 witnesses. The statements of the accused person were recorced Under Section 313 Criminal Procedure Code. Accused Bhoorkhan, Mehardin and Safikhan have taken the plea that they were grazing their herd of sheep and they went to rescue Karimkhan who was being beaten by the complainant party and that they have falsely been implicated by the complainant party. The other accused persons viz , Safikhan and Ganikhan have stated that they have been implicated falsely because of the involvement of their brother Karimkhan in the case. The remaining accused persons have taken the plea that they went to the field of Mst. Dhapu with four ploughs. When they were ploughing the field, the complainant party resisted them and started beating. Initially they gave beating to Karimkhan and later to Shaitansingh and other also. They then lodged a FIR of the incident at the Police Station and also filed a complaint of the incident. According to them, they have been falsely implicated. They examined DW 1 Mst. Dhapu, DW 2 Sujansingh in their defence. Muridkhan and Moolsingh have been examined on the point of sentence.
5. After hearing the parties, the learned lower court came to the conclusion that the offence Under Section 307 IPC is not made out against any of the accused-persons because none of the injuries caused to the complainant party was dangerous to life. It has however, held that the possession of the complainant party on field bearing Khasra No. 48 is disputed. The evidence of both the sides about the possession of the 'Pachawa' is not definite. How ever, it appears that because the field belonged to Mst. Dhapu and Bhagwan-singh the 'Pachawa' must also be belonging to them. It has held that the accused party came with certain ploughs to plough this field but at that time no resistence was offered by the complainant party. It only asked the accused-persons not to cultivate it but they did not listen to them. The occurrence took place only when they started ploughing the way leading to the Dhani. When they were told not to cultivate or plough the way leading to their Dhani, Bhagwansingh lit fire to the thorn fencing of the Dhani and thereafter, the accused party entered into the Dhani and opened an attack on the complainant party. The complainant party was seriously injured. In that process, it was possible that superficial injuries which have been received by the accused party might have been caused to them. It has rejected the plea of the accused party that any right of private defence accrued to them. It has held them to be aggressors. The learned lower court has recorded a definite finding that the Dhani belonged to the complainant party and they were living in that Dhani for the past about 5 years and, therefore, they accused party formed an unlawful assembly, entered into the Dhani and opened an attack on the complainant party and therefore, they were aggressors and hence, it has convicted and sentenced the accused persons as aforesaid. Aggrieved against the judgment of the learned lower court, 6 accused persons who have been sentenced to various terms of imprisonment and fine have come up in appeal.
6. I have heard Mr. D.K. Purohit, learned Counsel for the accused appellants and Mr. B.R. Mehta, learned Public Prosecutor for the State. 1 have meticulously gone through the record of the case.
7. Now I have to decide how for the findings of the learned lower court can be sustained on the basis of the record of the case.
8. It has not been disputed that the accused party went to the field bearing Khasra No.48 along with four ploughs to plough the field on July 19, 1976. The case of the prosecution is that the accused party came at 3 p.m. to plough the field whereas it has come in evidence that the accused-party came to the field at 5 p.m. This difference in time does not affect the merits of the case in any way.
9. The prosecution has examined PW 11 Devaram who was working as Patwari of the village at the relevant time. He has stated that in two biswas of land of Khasra No. 49, a Dhani is situated. This Dhani is in possessson of Megha, Roopa etc. from Samvat 2032. Nothing has been recorded in the Revenue Records that in whose possession it was before Samvat 2032. However, DW 1 Mst. Dhapu has admitted that this Dhani was possessed by the complainant party with her permission for the past about 5 years. Thus, it is clear that at the time of the occurrence, this Dhani was in possession of the complainant party. PW 11 Devaram has further submitted that possession of the field bearing Khasra No. 48 in Samvat 2032 was in dispute. Half of it has been recorded in possession of the Khatedars and half of it has been recorded in possession of Magharam etc. He has proved Khasra Girdawari Ex. P 21. This witness has stated that even now, the Dhani is in possession of Magharam etc. and half of the Dhani bearing Khasra No. 48 is in cultivatory possession of the Khatedars and half of it is in possession of the complainant party from Samvat 2032. In cross-examination, this witness has stated that this was recorded in the Khasra Girdawari under the orders of the Tehsildar-Jodhpur dated December 31, 1975 arid before that, the Girdawari was in the name of the Khatedars. He has stated that both the parties claimed that they are in exclusive possession of the entire field bearing Khasra No. 48. He referred this dispute to the Tehsildar. There is no 'Meda' showing the partition of the field in two portions and so, it cannot be said that which particular half portion of the field is in possession of the complainant party and which particular half portion of the field is in possession of the accused-party. According to the Patwar records, the complainant party is not tresspaser on this field but they were sub-tenant of this land earlier and later it was recorded that they are in possession of half of the field. It is, therefore, clear as per the Patwar records that the complainant party was living in the Dhani. It appears that they were sub-tenants of this field and were cultivating the entire field but when they raised a dispute that they are in possession, the accused party also asserted its own possession because Khatedari rights were in their favour. The dispute was referred to the Tehsildar and after enquiry, the Tehsildar recorded that the field be recorded in possession of both the parties in two equal shares. This probably enraged the accused party and, therefore, they came with four ploughs to the field and started to cultivate it.
10. PW 2 Ghewarram, PW 4 Binjaram, PW 5 Megharam and PW 8 Motiram have stated that the Patta and revenue receipts of the Bigodi of this field exist in their name but they have failed to produce any Patta and revenue receipt of the Bigodi and, therefore, the learned lower court has held that actually, Bigodi was not being paid by these persons and no Patta existed in their name. Had it existed in their name, they would have certainly produced it. The evidence of Patwari appears to be more credible when he says that the field existed in Khatedari rights of Mst. Dhapu and the complainant party was cultivating it as sub-tenants, that the Girdawari was always in the name of Mst. Dhapu and its Bigodi was also paid in her name. Only when the dispute was referred by the Patwari to the Tehsildar, after enquiry, it was held that the field be recorded in possession of both the parties in two equal shares. I need not detain myself much on the point of possession of the field because actually when the accused party went to cultivate the field with four ploughs, the complainants i.e. Magharam and Motiram etc. requested them not to do so., They did not pay any attention to their request and continued with ploughing of the field. PW 3 Allaram was present at that time but he went away saying Megharam and Motiram not to fight with each other as the case was already pending in the Court about this dispute. The occurrence took place only when the accused-party started ploughing the way leading to the Dhani of the complainant party. The accused-persons did not accept the request of the complainant party that ploughing the way will cause obstrcution in access to their Dhani. At that point of time, it is alleged that accused Bhagwansingh told them that they will not allow them to come out of the Dhani. The complainant party then went inside the Dhani. PW 2 Ghewarram, PW 5 Magharam and PW 8 Motiram have stated that at that point of time. Bhagwansingh lit fire to the thorn fencing of their Dhani. Their testimony is further corroborated by PW 9 Mst. Rami. All the four witnesses have categorically stated that the fire was lit to the thorn fencing and Pachawa by the accused Bhagwansingh. Inspite of a through cross-examination this testimony of these four witnesses could not be shattered in any material particulars. It is alleged that Bhagwansingh lit a bush with the match box and then put that burning bush into the thorn fencing of the Dhani and thereby, the thorn fencing caught fire and later on Pachawa also caught fire. After fitting the fire, the accused persons entered into the Dhani of the complainant party. PW 2 Ghewarram, PW 5 Magharam, PW 8 Motiram and PW 9 Mst. Rami, all have stated that the accused persons along with 2-3 more persons entered into their Dhani. They were armed with lathis. PW 2 Ghewarram has stated that initially accused Karimkhan landed a blow with the lathi on the left hand of Moti by which the bone of his hand was broken. Motiram fell down on the ground and thereafter, Indersingh, Bhagwansingh and Shaitansingh also inflicted lathi blows on the right arm of Motiram and that too was broken. Magharam came running to rescue him and asked them not to beat Motiram whereby Bhoorekhan gave a lithi blow on his head. The blood started oozing out of his injuries. After that, Roopsingh gave a lathi blow on his left arm and that toe was broken. Bhagwan Singh gave one blow on that very arm and his arm was broken. Thereafter, the accused persons started beating Magharam when he tried to intervene, Shaitansingh gave a lathi blow on his right arm by which his elbow was broken and he fell down on the ground and after that, all persons gave beating to him. Mst. Rami and Mst. Bhanwari also tried to intervene but Hhagwansingh gave a lathi blow by which Rami's right ribs were broken and Bhanwari too was beaten by Bhagwansingh.
11. PW 5 Magharam has stated that first of all Karim Khan gave a lathi blow on the right arm of Motiram. Actually, Karimkhan has given a blow on his left arm which has been broken. This fact has not been stated by PW 2 Ghewarram but Motiram seems to be correct that first blow was landed on his left arm and not on right arm. It has been alleged by PW 5 Magharam and PW 8 Motiram that accused Bhagwansingh, Shaitansingh and Indersingh also lended blows on his right arm and that too, was broken and he fell down on the ground. PW 5 Magharam and PW 8 Motiram have further stated that after that when Magharam tried to intervene, accused Karimkhan inflicted a blow on his head. The injuries started bleeding then Roopsingh inflicted a blow on his right arm which was broken and accused Bhagwansingh inflicted another blow on his left arm. When PW 2 Ghewar Ram tried to intervene, accused Shaitansingh inflicted a blow on his right arm which was broken. According to them, Mst. Bhanwari and Mst. Rami also received 3-4 blows each. As per PW 8 Motiram, Chhotiya was also beaten. According to PW 8 Motiram, in all six persons were beaten and the persons who gave beating were accused Bhagwansingh, Shaitansingh, Indersingh, Roopsingh, Karimkhan, Safikhan, Mehardin. Ganikhan, Bhoore-khan and five more persons.
12. PW 9 Mst. Rami has stated that initially Moti Ram was beaten by Bhagwan Singh and Roop Singh by which his both arms were broken. Magna Ram was also beaten by Bhagwan Singh, Inder Singh and Shaitan Singh. The head injury was inflicted by accused Bhagwan Singh. She was beaten by Bhagwan Singh, Roop Singh, Inder Singh and Shaitan Singh. She received 3-4 blows on her right ribs. PW 10 Hanwant Ram has stated that these accused persons entered the Dhani and when they started beating, he immediately ran away from the Dhani and went to inform Alla Ram and Vijay Singh. Later, they contacted Binja Ram and thereafter, the matter was reported to the Police.
13. In this case, the other two alleged injured persons, i.e., Mst. Bhanwari and Chhotiya have not been examined as witnesses at the trial. Their injury reports have also not been obtained and, therefore, it is difficult to hold that they were beaten by the accused persons.
14. However, PW 1 Dr. P. Dayal has proved the injuries of Magha Ram, Moti Ram, Mst. Rami and Ghewar Ram. As per Dr. P. Dayal, he examined Magha Ram on 20th July, 1976 at M.G. Hospital, Jodhpur. He had 7 injuries on his person. Five of them were lacerated wounds and injuries No. 6th and 7th were ill defined swellings on the left hand. Injuries No. 6 and 7, according to Dr. P. Dayal as also Dr. Gopiram Agrawal, were grievous. Dr. Gopi Ram Agrawal (PW 6) has stated that there was a fracture of mid shaft of both the bones, radius and ulna of the left forearm. According to him there was also a fracture of base of the proximal phalynx of little finger and neck of fifth metacorpal bone. He has proved X-ray report Ex. P. 2 of injured Magharam. As per PW 1 Dr. P. Dayal, these fractures were the result of injuries No. 6 and 7. According to PW 1 Dr. P. Dayal, Motiram had only two injuries. Both were ill defined swelling over the left and right forearm. PW 6 Dr. Gopiram Agrawal found that fractures of shaft of both the bones of forearm, radius and ulna as also the fracture of left and of radius of the right forearm. As per Dr. P Dayal, Ghewarram had only one injury i.e. bruise 3 cm. x 2 cm. with ill defined swelling over the right region. His injury report Ex. P. 6 has been proved by Dr. P. Dayal. Dr. Gopiram Agrawal reported posterior dislocation of the right elbow joint. Mst. Rami had three injuries. All the three were simple. Two of them were bruises and one was an abrasion.
15. If the testimony of these four eye witnesses is critically examined, it transpires that there is a specific evidence of beating being given to Moti Ram, Magharam, Ghewarram and Mst. Rami by accused Karimkhan, Bhagwansingh, Roopsingh, Indersingh and Shaitansingh. There is no specific evidence of causing any specific injury against the remaining four accused persons i.e. Mehardin. Bhoorekhan. Ganikhan and Safikhan. It has been alleged that Karimkhan inflicted one lathi blow on the head of Magharam as also one lathi blow on the left arm of Motiram by which his arm was broken. The injury inflicted on Magharam's head was simple in nature. It is alleged that Roopsingh inflicted a blow with lathi on the left arm of Magharam. That injury has been categorised as grievous by the Doctor. For accused Bhagwan Singh, it has been alleged that the inflicted one injury on the left arm of Magharam. This injury has resulted in fracture of his case of the proximal phalynax of little finger and neck of 5th metacropal bone. It is also alleged that he inflicted one blow on the right arm of Motiram along with accused Shaitansingh and Indersingh. Actually, there is only one injury on the right arm of Motiram, which has resulted in the fractures but accused Indersingh, Shaitansingh and Bhagwansingh all the three persons have been alleged as its authors. PW 9 Mst. Rami has stated that one of the injuries on her right ribs was inflicted by Bhagwansingh. This fact is supported by PW 2 Ghewar Ram. PW 9 Mst. Rami has stated that she was beaten by accused Bhagwan Singh, Roopsingh, Indersingh and Shaitansingh. She received only three injuries and not four. The evidence of PW 5 Magharam and PW 8 Motiram relating to the injuries received by Mst. Rami is general. They have stated that all have beaten her. As PW 5 Magharam and PW 8 Motiram were beaten earlier than Mst. Rami, they could not have observed the landing of blows by the accused-persons to Mst. Rami. PW 2 Ghewarram has stated that accused Bhagwansingh gave a blow on her ribs and after that, all gave beating to her. As stated above, Mst. Rami had only three injuries and so, all could not have inflicted injuries to her.
16. So far as the infliction of injuries by Shaitansingh is concerned, it has been alleged that he inflicted a blow on the right arm of Motiram and this injury has resulted in a fracture. This fact has been corroborated by PW 1 Dr. P.Dayal, PW 5 Magharam and PW 8 Motiram. Regarding injuries on Magharam and Motiram, the testimony of PW 9 Mst. Rami cannot be relied on because it appears that she has come late to the place of occurrence.
17. From this testimony, it is clear that specific injuries were alleged only against accused Karimkhan, Bhagwansingh, Roopsingh, Shaitansingh and Indersingh. The other accused persons have stated that they were actually grazing their herd of sheep and when they cameto rescue they too were beaten. If actually they have taken part in the beating, certainly some injuries would have been inflicted by them but no specific injuries have been alleged against accused Safikhan, Ganikhan, Mehardin and Bhoorekhan. I, therefore, hold that the learned lower court was not justified in recording conviction against accused Mehardin, Bhoore Khan, Safi Khan and Gani Khan. Safi Khan and Bhoore Khan have preferred no appeal and therefore, the conviction recorded against them by the learned lower court has become final and it cannot be interfered with.
18. The case of the defence is that they went with four ploughs to cultivate the field of the accused persons. They also admitted that Karim Khan, Bhagwan Singh, Roop Singh, Inder Singh and Shaitan Singh alone took part in the ploughing. This testimony of the accused persons concerned with the testimony of the witnesses that actually these 5 persons took part in the beating. They have entered into the Dhani of Magna Ram and Moti Ram and gave beating to these persons.
19. So far as lifting of fire is concerned, this appears to be the individual act of accused Bhagwan Singh. There appears to be no pre-concert among the accused persons to burn the Dhani. When the accused persons started ploughing the way leading to Dhani, which was objected by the complainant party and when Magha Ram and Moti Ram told that if they plough the way leading to their Dhani, how they will enter into the Dhani and come out of it, at that time, accused Bhagwan Singh told them that they will not allow them to come out and he lit the fire. If there was any pre-concert, they would have burnt the Dhani immediately when they came. But it appears that all of a sudden out of his own impulse, Bhagwan Singh lit fire to the thorn fencing of the Dhani. It does not appear to be an act done in pursuance of the common object of the unlawful assembly. However, all the five accused persons who entered the Dhani armed with lathis did form an unlawful assembly in order to beat Meghwals were trying to assert their possession on the field in dispute and their right to live in the Dhani and they tried to oust them by force. It was actually their common object to oust them from the Dhani and the field by use of force and in pursuance of that common object, they entered into the Dhani and have beating to them, which has resulted in grievous and simple injuries to the victims Magha Ram, Moti Ram, Shewa Ram and Mst. Rami.
20. Looking to the facts and circumstances of this case, the right of private defence of person and property is not available to the accused persons in this case. Even if it is argued for the sake of argument that they were in possession of the field in question. It is their admitted case that the complainant party was in possession of the Dhani for the past about 5 years and that the incident arose only when they tried to plough the way leading to the Dhani of the complainant party. The complainant party had a right to stop them from doing so and actually when they told them not to do so, the accused persons became aggressive and one of them, i.e., Bhagwan Singh lit tire to the thorn fencing of the Dhani and then all of them entered into the Dhani armed with lathis to beat the complainant party. While they were beating, it is quite possible that the persons coming to rescue might have landed some blows to them but those blows were landed by them in exercise of their right of private defence of person and property both because the accused persons unauthorisedly entered into their Dhani and they were beating them. Thus, the right of private defence of person and property does not accrue to the accused party. The accused party cannot take any advantage of the injuries found on their person.
21. The substantive offence Under Section 325 IPC has only been alleged against the accused Karim Khan. All the other accused persons were charged with the offence Under Section 325/149 IPC. In the trial specific evidence has come that accused Roop Singh has broken the left arm of Magha Ram. Bhagwan Singh and Karim Khan have broken both the arms of Moti Ram and Shaitan Singh has broken the left arm of Ghewar Ram. Be that as it may as all these injuries were inflicted in pursuance of the common object of their unlawful assembly, I feel that the learned lower court was justified in holding the accused Karim Khan guilty of the offence Under Sections 147, 325, 323/149 IPC. It was also justified in holding the accused Shaitan Singh, Roop Singh, Inder Singh guilty of the offences Under Sections 147, 325/149 and 323 IPC and accused Bhagwan Singh of the offence Under Sections 147, 325/149, 323 and 435/149 IPC. It has rightly acquitted all the accused persons of the offence Under Section 307 IPC. Accused Shaitan Singh, Roop Singh and Inder Singh, Karim Khan and Bhoore Khan cannot be held guilty of the offence Under Sections 435/149 IPC. The conviction and sentence of accused Mehardin and Bhoore Khan for the offence Under Section 147, 323, 435/149 and 325/149 IPC are set aside and they deserve acquittal by giving the benefit of doubt.
22. Learned Counsel for the accused-appellants submitted that the occurrence took place in the year 1976 and now we are running in the year 1985-86, and that after a lapse of about 9 years, the accused persons should not be sent back to the custody. I cannot persuade myself to accept this submission made by the learned Counsel for the accused appellants so far as the sentence is concerned. Actually, the complainant party was in cultivatory possession of the field bearing Khasra No. 48 as sub-tenants. They were living in the Dhani situated in field bearing Khasra No. 49. When they asserted their possession on the field and the Dhani, these accused persons took the law in their own hand. They being Sawarnas and powerful persons of the village tried to oust these persons from the possession of that field and Dhani by use of force. Even when the Tehsildar ordered that the complainant party is in possession of half of the field in question and this fact finds mention in the Girdawari still. When the accused persons started ploughing the entire field, the complaint party only requested them not to do so and when the accused persons did not pay any attention to their request, the complainant party retired to their Dhani. The ploughing went un-abated and only when the accused persons started ploughing the way leading to the Dhani of the complainant party, the complainant party objected and this has resulted in burning of the thorn fencing and Pachawa by the accused Bhagwan Singh as also causing of grievous and simple injuries to the inmates of the Dhahi as discussed earlier by these five accused persons by entering into their Dhani. Such a high handed act on the part of the accused party in face of such an exemplary restraint exhibited on the part of the complainant party cannot be viewed with such leniency. Of course, the fact that the occurrence has taken place before 10 years is to be taken into account but that is no fault of the complainant party, if the appeal takes years in this court before it is listed for hearing. In this case, the acts of the accused persons were very high handed and, therefore, such leniency cannot be shown to them so far as the point of sentence is concerned.
23. Accused Shaitan Singh, Inder Singh, Roop Singh and Karim Khan have been sentenced to one year's rigorous imprisonment for the offence Under Section 147 IPC. I reduce their sentence to three months' rigorous imprisonment on this count. Accused Karim Khan for the offence Under Section 325 IPC and accused Shaitan Singh, Inder Singh and Roop Singh for the offence Under Section 325/149 IPC were sentenced to 2 years' rigorous imprisonment together with a fine of Rs. 200/- and in default of payment of fine, to-further undergo two months' simple imprisonment. The sentence on these counts also reduced to 6 months rigorous imprisonment together with a fine of Rs. 200/-, in default, to further undergo two months' simple imprisonment. For the offence Under Section 323/149 IPC, accused Karim Khan and for the offence Under Section 323 IPC, accused Shaitan Singh, Inder Singh and Roop Singh were sentenced to 6 months' rigorous imprisonment. I reduce their sentence to three months rigorous imprisonment on this count.
24. In the result, the appeal of Mehardin and Bhoore Khan is accepted and they a acquitted of the offences Under Sections 147, 323, 433/149, 325/149 IPC by giving them the benefit of doubt. They are on bail and they need not surrender to bail bonds. However, the appeal of accused appellants Shaitan Singh, Inder Singh, Roop Singh and Kasim Khan is partially accepted. All these four accused appellants are acquitted of the offence Under Section 435/149 IPC by giving the benefit of doubt. The conviction of accused appellant Karim Khan for the offence Under Sections 325, 147 and 323/149 IPC it maintained and he is sentenced to three months' rigorous imprisonment for the offence Under Section 147 IPC, 6 months' rigorous imprisonment together with a fine of Rs. 200/- and in default of payment of fine, to further undergo 2 months' simple imprisonment for the offence Under Section 325 IPC and three months' rigorous imprisonment for the offence Under Section 323/149 IPC. The conviction of accused appellants Shaitan Singh, Inder Singh and Roop Singh for the offence Under Sections 147, 325/149 and 323 IPC is also maintained and they are sentenced to three months' rigorous imprisonment for the offence Under Section 147 IPC, 6 months' rigorous imprisonment together with a fine of Rs. 200/- and in default of payment of fine to further undergo 2 months simple imprisonment for the offence Under Section 325/149 IPC and three months' rigorous imprisonment for the offence Under Section 323 IPC. All the substantive sentences shall run concurrently. Accused appellants Karim Khan, Shaitan Singh, Inder Singh and Roop Singh are on bail. Their bail bonds are hereby cancelled. The learned Addl. Sessions Judge No. 2, Jodhpur is directed to effect the arrest of the accused appellants Karim Khan, Shaitan Singh, Inder Singh and Roop Singh to serve out the sentences imposed against them. The period of during which they remained in Police or Judicial custody during investigation, enquiry or trial Shall be set off against their period of sentences imposed on them.