Chand Mal Totla, J.
1. Heard learned Counsel for the parties.
2. This appeal is against the judgment and order of conviction and sentence dated 15.11.2000 passed by the Court of learned Additional Sessions Judge, Ratangarh (Churu) in Sessions case No. 42/1992 (91/1989). There was a cross case and that was Sessions Case No. 54/1992 (34/1990) wherein the accused persons, members of the complainant party in the present case, were convicted by the same Court i.e. Court of learned Additional Sessions Judge, Ratangarh (Churu) by judgment and order dated 15.11.2000. The appeal against cross case being SB. Criminal Appeal No. 682/2000 is also being decided today by separate judgment.
3. In Village Dassusar in town Simsiya, agriculture land bearing khasra Nos. 229, 357 and 30 total measuring 78 bighas 10 biswas was the agricultural land of one Moola Ram. Mst. Seu Devi @ Mst. Sua Devi is wife of Moola Ram. Moola Ram and Seu Devi had no issue. Moola Ram had two brothers Kalu Ram and Chela Ram. Kalu Ram also had no issue. Only Chela Ram had issue. Moola Ram died about 25 years ago from the year 1988. Jetha Ram claimed that he was adopted by Moola Ram and on 27.10.1958, Moola Ram executed a declaration (Pratigya Patra) (Ex.D/3) admitting Jetha Ram's adoption, which was verified from the Gram Panchayat Simsiya. However, after the death of Moola Ram, name of only Seu Devi was entered in the revenue record. Part of the said land was purchased by one Girdhari and his son Nirayana Ram by registered sale deed dated 4.10.1988 from Seu Devi and on the basis of that sale deed, by which 42 bighas 3 biswas land of khasra No. 229 and 6 bighas 5 biswas of khasra No. 357 total 48 bighas 8 biswas were sold by Mst. Seu Devi to Girdhari Lal and Nirayana Ram, mutation was opened and in the revenue record, the purchasers' names were entered (Jamabandi Ex.P/68 and its copy Ex.P/68A).
4. When this fact of alleged purchase of land by Girdhari Lal and Nirayana Ram came in the knowledge of Jetha Ram, the alleged adopted son of Moola Ram and Seu Devi, he filed a suit in the Court of Sub Divisional Magistrate, Ratangarh, Copy of which is Ex.D/34. In the said suit filed against the purchasers, Girdhari Lal and Nirayana Ram, application for interim relief was filed on 31.10.1988, copy of which is Ex.D/36. On 4.11.1988, injunction order was passed in favour of Jetha Ram which was against the purchasers restraining them from interfering in possession and cultivation of Jetha Ram. Copy of this order is Ex.D/37. Jetha Ram died and in his place, his legal representatives became party in the suit on 30.4.12994. Copy of amended suit is Ex.D/31. One more suit was filed for cancellation of sale deed 4.10.1988 on 26.9.1991, copy of which is Ex.D/40, which was amended and copy of amended suit is Ex.D/42. The purchaser Nirayana Ram also filed cross suit, copy of which is Ex.D/38. Even a criminal case against Jetha Ram, alleged adopted son of Moola Ram and Seu Devi, and his son Gopal Ram was lodged. FIR was filed in the police station with allegation of theft wherein FR was submitted on 21.12.1988, copy whereof is Ex.D/43. Therefore, there was dispute between family of Jetha Ram (claiming right through adoption) with the purchasers Girdhari Lal and Nirayana Ram's family who purchased the property from the alleged adoptive mother of Jetha Ram by registered sale deed.
5. As per the prosecution case, because of that rivalry both the parties were asserting their title and possession over the land of khasra numbers mentioned above. The incident which is under consideration in this appeal happened on 30.6.1989.
6. As per the prosecution case on 30.6.1989 at 11:00 AM, complainant Mana Ram s/o Bhera Ram, by caste Jat, r/o Dassusar at Government Hospital, Ratangarh gave oral report (Parcha Bayan) to SHO Roshan Ali (PW24) of the Police Station, Rajaldesar (Ex.P/9) stating therein that he was taking his cattle to the well of village. There Mala Ram's son Bhanwara Ram came on a camel cart and shouted that the sons of Chokha Ram are ploughing the agricultural land and, therefore, they are required to be given a lesson. Jetha Ram, Gopal, Lachu and Hira Ram's sons came running making 'rota' (shouting) and were saying that today, Chokha's sons will be killed. Complainant Mana Ram's nephew Shera Ram also went with Choka's sons to the agricultural field. The complainant immediately rushed towards the agricultural field. When he reached near the boundary of the agricultural field, in the tractor of Dharma Ram s/o Mohan Lal which was being driven by Bhanwara s/o Gopal, wherein Gopal Ram s/o Jetha Ram had 'pistol' in his hand, Indra Ram s/o Jetha Ram, Lala Ram s/o Kumbha Ram, Bhanwara Ram s/o Mala Ram and Adu Ram's wife had 'Chosangi'; Prabhu Ram s/o Jetha Ram and Tara Chand s/o Lachhu Ram had 'Shall'; Bhanwara Ram s/o Gopal Ram, Narayan Ram s/o Pana Ram, Likhma Ram s/o Lachhu and wife of Mana Ram had 'Gandasies'; Dharma Ram s/o Jetha Ram, Birju s/o Gopal, Kana Ram s/o Lala Ram, Mala Ram, s/o Kumbha Ram, Adu Ram s/o Nola Ram, Durga Ram s/o Lachhu Ram, Bhagwana Ram s/o Mala Ram, Mohan Ram s/o Hira Ram, Tulchha Ram s/o Hira Ram, Kunana Ram s/o Hira Ram, Narayan s/o Lachhu Ram, Bhanwari w/o Megha Ram and wife of Indra Ram had 'Lathies' in their hands, came down and shouted 'kill-kill'. All the accused with lathies, Shail, Jai, Barchi etc. Started beating Chokha Ram's sons -Gordhan, Tiku and Narayan, complainant's nephew shera Ram and Surja Ram Kumhar with intention to kill them. Accused tried to give beating to sons of Choka Ram -Bhagwana Ram and Harkha Ram who saved themselves and ran away from the place of the incident. The complainant, out of fear, sat under the fencing of the agricultural land during this fight. At that time, Bhanwara Ram Kaswa, Bhagwana Ram s/o Jhoomar Ram, Lala Ram s/o Nopa Ram were also passing through as they were going to their agricultural land. They also saw the incident. When these persons gave challenge to the accused, all the accused ran away. After that, the complainant went near the victims and found that Narayan, Tiku and Gordhan were already dead. Shera Ram and Sugana Ram were crying and they became unconscious.
7. In the oral report, the complainant stated that to inform this incident, he came from the place of incident on foot to Rajaldesar and by the time, he reached there, he found Rajaldesar police took the injured to the Ratangarh Hospital and, therefore, he came to the Ratangarh Hospital. He stated that all the accused with common object killed Narayan Tiku and Gordhan and injured so many persons and that has been done because of the litigation between two families - one of Choka Ram and another of Jetha Ram. It is alleged that the land was purchased by Choka Ram in the name of his sons and he took possession of the land also from Mst. Seu Devi whereas Jetha Ram who is Mst. Seu Devi's husband's elder brother's son wants to grab the land and he has already filed suit in the revenue court. Due to this enmity, they killed and injured the victims.
8. On the basis of this parcha bayan of complainant Mana Ram, FIR No. 10/1989 for offence under Sections 302, 307, 147, 148, 149, 447 and 323 IPC was registered and investigation started. The bodies of Shera Ram & Sugana Ram sons of Uda Ram and Gordhan Ram, Tiku Ram & Narayan Ram sons of Choka Ram, who died in the incident, were sent for post mortem and their post mortem reports were obtained. Other injured Harkha Ram, Girdhari, Thakar Ram, Bhagwana Ram s/o Nyola Ram and Bhagwana Ram s/o Chokha Ram were examined by the doctor and their medical reports were obtained. Site was inspected and relevant evidence was collected and seized from the site including the blood soil, plain soil and also certain household articles, agricultural implements, one air gun, one kulhari, one barehi, two wrist watches were also seized from the place of incident and their seizure memos Were prepared. After post mortem, the bodies of the deceased were handed over to their relatives for last rites. It was found that the incident occurred before the site inspection Commissioner appointed in revenue suit could have submitted his report in the SDM's Court, Ratangarh in the suit filed by one of the party. In this fight, members of the accused party were also injured who were medically examined and copies of revenue record were also obtained and statements of witnesses were recorded under Section 161 CrPC. The accused were arrested and they gave information under Section 27 of the Evidence Act, on the basis of which the weapons of offence were recovered. Copy of order appointing Commissioner was also obtained and thereafter challan was filed against 27 accused persons,
9. The trial court framed charges against accused Mala Ram for the offence under Sections 302 in alternative Under Section 302/149, 307 in alternative Under Section 307/149, 325, 323 in alternative Under Section 323/149, 148 and 447 IPC. Against rest of the accused persons, charges for the offence under Sections 302 in alternative Under Section 302/149, 307 in alternative Under Section 307/149, 325/149, 323 in alternative Under Section 323/149, 148 and 447 IPC were framed. The accused denied the charges and sought trial.
10. At the trial, the prosecution produced PW1 Jairaj Panwar, PW2 Smt. Seu @ Sui, PW3 Mana Ram, PW4 Bhagwana Ram, PW5 Thakar Ram, PW6 Lala Ram, PW7 Fefa Ram, PW8 Bhanwara Ram, PW9 Chokha Ram, PW10 Harkha Ram, PW11 Girdhari, PW12 Surja Ram, PW13 Mohan Ram, PW14 Bhagwana Ram, PW15 Bhoma Ram, PW16 Narayana Ram, PW17 Poorna Ram, PW18 Moola Ram, PW19-Ghadsi Ram, PW20 Bega Ram, PW21 Nawab Ali, PW22 Nagar Mal, PW23 Dr. Bhanwar Lal Verma, PW24 Roshan Ali, PW25 Dr. Lal Chand Suthar, PW26 Raghuveer Singh, PW27 Bhanwar Singh, PW28 Richpal Singh, PW29 Ram Lal, PW30 Bhanwar Singh, PW31 Ummed Singh and PW32 Suresh Tiwari and exhibited 130 documents.
11. During trial, accused Deva Ram s/o Hira Ram died and, therefore, the case against him was abated vide order dated 16.7.1997. Statement of rest 26 accused were recorded under Section 313 CrPC wherein they denied all allegations and gave their own explanation. In defence, seven witnesses DW1 Kunana Ram, DW2 Mohan Ram, DW3 Chothu Ram, DW4 Lichman Singh, DW5 Salu Ram, Dw6 Bhanwar Singh and DW7 Ghanshyam Chandra were examined so also, 32 documents were exhibited.
12. The trial court, by the impugned judgment dated 15.11.2000, convicted only ten accused appellants Smt. Bhanwari w/o Megha Ram, Nirana Ram s/o Lichhu Ram, Indra Ram s/o Jetha Ram, Bhagwana Ram s/o Mana Ram, Mohan Ram s/o Hira Ram, Kunana Ram s/o Hira Ram, Amara Ram s/o Ratna Ram, Tulcha Ram s/o Hira Ram, Gopai Ram s/o Jetha Ram and Likhma Ram s/o Lachhu Ram and rest of the accused Adu Ram s/o Nyola Ram Lala Ram s/o Kumbha Ram, Birju Ram s/o Gopal Ram, Kana Ram s/o Gopal Ram, Prabhu Ram s/o Jetha Ram, Bhanwara Ram s/o Gopal Ram, Megha Ram s/o Amra Ram, Bhanwara Ram s/o Mala Ram, Narayan Ram s/o Panna Ram, Kana Ram s/o Lala Ram, Durga Ram s/o Lachu Ram, Dharma Ram s/o Jetha Ram, Tara Chand s/o Lichu, Smt. Dhanni w/o Mana Ram, Smt. Maggi s/o Indra Ram and Mala Ram s/o Kumbha Ram were acquitted from the charges levelled against them.
13. The learned trial court vide judgment dated 15.11.2000 convicted and sentenced the accused appellants as under:
Offence PunishmentSection 148 IPC Each appellant to undergo rigorousimprisonment for two years.Section 302 IPC Each appellant to undergo life imprisonmentr/w 149 IPC with a fine of Rs. 1,000/- each and in default tofurther undergo 3 month's simpleimprisonment.Section 325 IPC Each appellant to undergo rigorousr/w 149 IPC imprisonment for three years with a fine ofRs. 500/- each and in default to further undergo2 months' simple imprisonment.Section 324 IPC Each appellant to undergo rigorousr/w 149 IPC imprisonment for two years.Section 323 IPC Each appellant to undergo rigorousr/w 149 IPC imprisonment for six months.
14. Learned Counsel for the appellants assailed the finding of the trial court and submitted that the entire prosecution story is a result of concoction of story by the complainant party. The prosecution failed to prove the real cause of free fight between the parties and the trial court miserably failed to know the effect of specific finding about the actual physical possession of the complainant party over the land in dispute where the appellants were attacked by the complainant party and further failed to appreciate that the appellants were not the aggressors but the complainant party was aggressor. It is also submitted that the trial court committed error of law in holding that the appellants were the members of unlawful assembly and in fact, the trial court held that the accused party was in possession of the land in question and also observed that the presence of the accused party on the land in question was in natural sequence, then how the appellants can be held to be members of unlawful assembly? It is also submitted that the accused appellants had every right to protect their property and when there is threat to their property as well as to their own life, then they had every right to resist that aggression with might in exercise of their right of private defence. It is also submitted that even if the finding of the trial court about unlawful object is examined, then if there was an object to defend the possession and save appellants' own life, then that object cannot be said to be unlawful object. Rather say, that object is in furtherance to right of private defence of the appellants who were and are in possession of immovable property against which there was an eminent threat and danger/danger to life also. In view of the above, none of the appellants could have been convicted with the aid of Section 149 IPC.
15. Learned Counsel for the appellants further submitted that the statement of eye witnesses are wholly unreliable and it is clear from the evidence produced by the prosecution itself that the real facts have been suppressed by the prosecution and that is due to complainant party and their witnesses who are relatives, having enmity with appellants. The grave injuries were found on the body of the accused persons and those injuries have been proved by medical evidence and the prosecution witnesses failed to explain those injuries which were on the body of the accused persons and more is that the prosecution witnesses denied the injuries on the body of the appellants who suffered injuries in the same incident and accused member of complainant party, were convicted by trial court in cross case. The trial court should have drawn inference that the alleged eye witnesses and other witnesses are not reliable and are speaking lie.
16. Learned Counsel for the appellants vehemently submitted that the appellants have been acquitted of the charge of criminal trespass under Section 447 IPC, then in that situation, the appellants could not have been aggressors and this fact proves the possession of the appellants over the land in question where the aggressors attacked upon them who are the accused in cross case filed by the appellants and who have been convicted.
17. In sum and substance, the appellants' contention is that firstly they were in possession of the land in question. They, finding serious threat to the property and life, exercised right of private defence wherein five aggressors died and some of the aggressors suffered injuries. Therefore, they are entitled to be acquitted for the offence for which they have been charged. It is also the case of the appellants that in the facts of the case, none of the accused should have been convicted with the aid of Section 149 IPC because there was no common object and object to defend is not unlawful object. It is also submitted that it was a case of free fight and, therefore, even if anyone could have been convicted, then that person alone could have been convicted for the act which he committed personally and individually. In the present case, firstly, the appellants are entitled to be acquitted as they have exercised their right of private defence and secondly, it was a case of private defence and, thirdly, if any person who inflicted the injury is responsible to the consequence of that act, than the prosecution has not proved who individually is responsible for fatal or other injury and who inflicted which injury upon which of the victim. Therefore, all the appellants are entitled to be acquitted.
18. Learned Counsel for the appellants tried to draw our attention to the discrepancies in the evidence of the prosecution witnesses as well as some procedural defect in conducting the investigation and lodging of FIR after delay and further submitted that initial FIR was withheld by the prosecution. It is also submitted that even the injured witnesses are not reliable and, therefore, in view of the long enmity between the parties. Large number of persons have been falsely involved by the complainant and that shows that the complainant can concoct any false story against the innocent persons.
19. Learned Public Prosecutor as well as learned Counsel for the complainant supported the judgment of the trial court and stated that the occurrence of the incident and place of occurrence is not in dispute. Five persons died and that fact itself is sufficient to hold that the plea of right of private defence is not available to the appellants and, therefore, their appeal deserves to be dismissed only on this ground because of the reason that when the fight is admitted and in that fight, killing of five persons is admitted and right of private defence cannot be stretched to allow killing of five persons by the accused persons who are claiming possession or may be in actual possession. The plea is based only on the ground of imaginary threat to their life and property. It is submitted that according to the appellants themselves, they did not went on the field to plough it, then what was the occasion for them to have so many weapons with them so as to overpower the large number of aggressors and kill five aggressors and injure other number of persons. In view of the above reason, the entire defence of the accused falls to the ground. It is also submitted that from totality of the facts, it is fully proved that the appellants wanted to show their possession over the agricultural land and in that effort, they attacked upon the members of the complainant party mercilessly and killed five persons and injured so many other persons.
20. We considered the submissions of learned Counsel for the parties and perused the record and the reasons given by the trial court in the impugned judgment.
21. The facts in brief may be recapitulated here. The cause of dispute between two rival groups is because of the claim of right, title, interest and possession in/over agriculture land of Khasra Nos. 229 and 357 of Village Dassusar of Halka Simsiya. That land was originally belonging to one Moola Ram whose first wife was Mst. Ana Devi. As per PW2, second wife of Moola Ram - Mst. Sua Devi, first wife Mst. Ana Devi died without living any issue. Mst. Sua Devi was also earlier married to some one, resident of Sujangarh and her first husband died. Thereafter, she contracted Nata marriage with said Moola Ram. Out of this marriage also, no issue borne to Moola Ram and Mst. Sua Devi. Jetha Ram was claiming that he was adopted by his real uncle Moola Ram and Moola Ram died about 28 years ago from the time of the incident. Jetha Ram's contention is that they were in possession of the said agriculture land since time of Moola Ram and thereafter, after death of Moola Ram. This fact of adoption of Jetha Ram by Moola Ram or by Mst. Sua Devi has been denied by Mst. Sua Devi (PW2) in her statement. She also admitted that she sold the land in dispute to Nirayana Ram and Girdhari Lal by registered sale deed for a consideration of Rs. 73,000/- and gave possession of the land to the said Nirayana Ram and Girdhari Lal. Before Nirayana Ram and Girdhari Lal, she herself was cultivating the land in question and Jetha Ram was not in possession of the land in dispute.
22. It is also proved from the documentary evidence and substantially it is not in dispute when fact of sale of the land by Mst. Sua Devi in favour of the purchasers referred above came to the knowledge of Jetha Ram, then he filed suit on 30.10.1988 in the Court of S.D.M., Ratangarh and challenged the sale deed and after death of Jetha Ram, in the year 1994, Jetha Ram's legal representatives became parties in the suit. Jetha Ram in his life time submitted injunction application in the Court of SDM, Ratangarh in the said suit and obtain order for appointment of site inspection Commissioner and in that injunction application, interim order was passed on 4.11.1988 restraining the purchasers from interfering with the land in question vide Ex.D/37. Nirayana Ram also filed counter suit, copy of which is Ex.P/38. One more suit for cancellation of sale deed (after present incident) was filed by. Jetha Ram on 26.9.1991, copy of which is Ex.D/40. The purchasers filed a FIR No. 238 on 21.11.1988 for removing the crop of the purchasers by Jetha Ram in which FR Ex.D/43 was submitted by the police. In view of the above mentioned facts, it is clear that two parties had not only no good relations but had enmity. During this litigation on 30.6.1989, this incident occurred.
23. The prosecution produced 5 injured witnesses who are PW4 Bhagwana Ram, PW5 Thakur Ram, PW10 Harkha Ram, PW11 Girdhari Ram and PW14 Bhagwana Ram (second) as well as complainant PW3 Mana Ram. They supported prosecution case. However, some part of statements of these witnesses were not believed by the trial court but that finding, we found, is not affecting the finding of the trial court holding appellants' involvement and committing of offence for the reasons mentioned herein after.
24. It will be worthwhile to recapitulate the fact that in the incident in question, five persons namely, Gordhan Ram, Tiku Ram & Narayan Ram all three sons of Chokha Ram and Sugana Ram & Shera Ram both sons of Uda Ram died, who were members of the complainant party and their post mortem reports are Ex.P/77 to Ex.P/81 respectively. From the post mortem reports, it is proved that the injuries suffered by them were sufficient to cause their death in the ordinary course. Deceased Shera Ram, as per post mortem report Ex.P/77, had 20 injuries out of which injuries No. 1 to 13 and 17 to 20 were caused by blunt weapons and injuries No. 14 to 16 were caused by sharp edged weapon. He died due to said injuries which caused shock. Deceased Sugna Ram, as per post mortem report Ex.P/78, had 28 injuries which were caused by blunt weapons, sharp edged weapon and piercing object. He suffered fractures and damage to liver. Deceased Girdhari, as per post mortem report Ex.P/79, had 2 punctured wounds on the vital parts, 4 lacerated wounds and 1 abrasion. He died due to shock due to injury on vital organ - left lung and haemothorax. Deceased Tiku Ram, as per post mortem report Ex.P/80, had 19 injuries which included incised wounds, fracture, piercing wounds, crushed wounds and abrasions including injuries on lungs. Deceased Narayan Ram, as per post mortem report Ex.P/81, had 21 injuries inflicted by blunt weapons, sharp edged weapon and piercing object resulting into his death. These post mortem reports were proved by PW23 Dr. Bhanwar Lal Verma.
25. From the complainant's side, Harkha Ram, Girdhari, Thakar Ram, Bhagwana Ram s/o Nyola Ram and Bhagwana Ram s/o Chokha Ram also suffered injuries and these injuries have been proved by ocular evidence as well as medical evidence - injury reports Ex.P/82 to Ex.P/86. Harkha Ram suffered in total 18 injuries but none of them was grievous injury. However, he suffered injury No. 8 and 9 on his left thumb and left index finger from sharp edged weapon. Injured Girdhari had 5 injuries which were simple in nature and caused by blunt weapon. Injured Thakar Ram suffered 3 injuries which were simple in nature and caused by blunt weapon. Bhagwana Ram s/o Nyola Ram suffered 3 injuries which were of simple nature and inflicted by blunt weapon. Bhagwana Ram s/o Chokha Ram had 6 injuries out of which injury No. 4 was grievous in nature and rest 5 were of simple nature. Injuries of all these injured persons were not sufficient to cause death in ordinary course.
26. Ten appellants, who have been convicted by the trial court by the impugned judgment, suffered injuries in this incident which have been proved by injury reports Likhma Ram (Ex.D/10), Mohan Lal (Ex.D/11), Gopal Ram (Ex.D/12), Deva Ram (Ex.D/13) (died during trial), Tulsa Ram (Ex.D/14), Kunana Ram (Ex.D/15), Amru Ram (Ex.D/16), Narayan Ram (Ex.D/17), Bhagwana Ram s/o Mana Ram (Ex.D/18), Bhanwari (Ex.D/19) and Indra Ram CEx.D/20).
27. In view of the facts mentioned in the above preceding paras, it is clear that so far as the presence of all these 10 accused appellants on the place of occurrence, at the time of incident and their involvement in the incident is concerned, that is proved by ocular evidence, detail discussion of which is not necessary and the medical evidence corroborates the ocular evidence fully. In view of the above undisputed position, the appellants could not have challenged their conviction on the ground of their nonavailability at the time of incident at the place of occurrence or due to their non-participation and, therefore, only defence available to the appellants was their right of private defence. In the above facts, a few discrepancies, which are not as such material, in investigation or minor contradictions in the statement of the witnesses are not beneficial for the appellants and, therefore, the appellants did not put much stress on those minor contradictions obviously, correctly. They did not dispute their presence on the scene of occurrence and their involvement in the incident. Therefore, learned Counsel for the appellants heavily relied upon the plea of self defence. According to learned Counsel for the appellants, the agricultural land admittedly was belonging to one Moola Ram who died about 25 years ago from the year 1988 as stated by PW2 Mst. Seu Devi, wife of Moola Ram. Thereafter, Seu Devi was cultivating the land in question. She sold the said land to Girdhari and Nirayana Ram both sons of Chokha Ram by registered sale deed dated 4.10.1988 for a consideration of Rs. 73,000/- and handed over possession of the said land to them. They were in possession of the said land and the complainant party claiming Jetha Ram to be adopted son of Moola Ram, to grab the appellants' party's land, came with weapons with clear intention to not only cause bodily injuries to the appellants who went there to take some soil, but in case, needed, the accused persons may be killed by the complainant party by entering into the field which was in possession of the appellants and inflicted serious injuries resulting into so many injuries on the body of the so many persons of the appellants accused party.
28. Therefore, the appellants only exercised their right of private defence. It is submitted that danger to not only their property but to their lives was so eminent that they had no option but to retaliate the aggression and appellants Bhagwana Ram, Mohan Ram, Tulcha Ram, Kunana Ram, Narayan Ram, Bhanwari w/o Megha Ram had lathies with them. Lathies are usually found at agricultural fields as lathies are used for number of agricultural operations. Therefore, neither they could have any intention to kill anybody nor they could have killed anyone by beating with lathies. It is said that Gopal Ram had gun with him but neither there is any gun shot injury on any of the victim nor any gun was recovered. Appellant Indra Ram is alleged to have inflicted injuries by Chosangi, which is a iron fork used for lifting the fodder and that is an agricultural implement only. Inflicting of injuries by Chosangi in view of the grave threat to his life, if he has inflicted injuries by Chosangi, then that is also well within his right of private defence to resist the attack on his life. Ten appellants were convicted out of which appellants Nirana Ram and Amra Ram had already died and the appeal filed by them have abated.
29. Learned Counsel for the appellants vehemently submitted that no inference can be drawn that the appellants have exceeded their right of private defence because of the fact that 5 persons died. It is submitted that there was not only the apprehension in the minds of the appellants that their life was in danger but in fact, the aggressors party formed unlawful assembly and came with common object not only to take possession of the agricultural land of the appellants but to kill the appellants if they resist and even if they do not resist, then too, to kill them and teach a lesson to them. According to learned Counsel for the appellants, the land in question was sold by Mst. Seu Devi and purchasers were put in possession of the said land. The complainants under false claim of their right in the agricultural land and to create evidence in the case filed by them before the Commissioner could inspect the site, they tried to eliminate the purchasers and the appellants. From revenue record, it is fully established that the purchasers of the land in question were in possession and this fact has been proved from trustworthy revenue record and the statement of the patwari PW19 Ghadsi Ram and from the statement of PW2 Mst. Seu, original khatedar tenant of the land in question as well as from the evidence of PW5 Thakar Ram, PW10 Harkha Ram, PW11 Girdhari and sale deed Ex.P/52 and evidence of PW9 Chokha Ram, father of the purchasers.
30. It is not in dispute that Jetha Ram was the son of the elder brother of Moola Ram, husband of Mst. Seu. Moola Ram died about 25 years ago from the time of incident in the year 1989. As per PW2, second wife of Moola Ram - Mst. Sua Devi, first wife Mst. Ana Devi died issueless. Mst. Sua Devi was also married to some one resident of Sujangarh and her husband also died. Thereafter, she contracted Nata marriage with said Moola Ram. Admittedly, no issue borne to Moola Ram and Mst. Sua Devi. Moola Ram had two more brothers - Kalu Ram and Chola Ram. Kalu Ram died issueless and only Chola Ram had Issue. The contention of Jetha Ram is that he was adopted by his real untie Moola Ram, husband of Mst. Sua, about 32 years ago and that fact has been reported or brought to the knowledge of Gram Panchayat by Moola Ram himself by giving a declaration on 27.10.1958 (Ex.D/3). When the fact of sale of land by Mst. Sua Devi by registered sale deed dated 4.10.1988, came to the knowledge of Jetha Ram, he filed suit on 30.10.1988 in the Court of Assistant Collector, Ratangarh i.e. in the same month in which the sale deed was executed by Mst. Sua Devi. Copy of plaint is Ex.D/34 wherein interim ex-parte injunction order was passed on 31:10.1988. After the unfortunate incident resulting in death of five persons and injuries to large number of persons on 28.9.1989, a suit for cancellation of sale deed was also filed by Jetha Ram on 26.9.1991 i.e. after the incident under consideration, copy of suit is Ex.D/40. There was a case of theft against accused Gopal Ram and his father Jetha Ram wherein FR No. 67 was submitted in the Court on 21.12.1988. It is also not in dispute that a site inspection Commissioner was appointed to inspect the site and before the site could have been inspected by the Court Commissioner, this incident occurred.
31. The above facts fully prove the long enmity between the parties and dispute was because of rival claim over the agricultural land of a person who died 25 years ago who had no issue but who left wife Mst. Sua Devi, involvement of number of persons from both the sides cannot be due to and because of only in the course of any agricultural operation or because of any or during the course of improvement of agricultural land for cultivation. The incident occurred in the month of September, 1989 which was after rainy season in Rajasthan. As per site map Ex.P/10 and site report Ex.P/10A, it appears that there was no crop standing in the agricultural land, therefore, it appears to be an act done to show possession over the land in dispute during pendency of the pending litigation for establishing right of the parties. The learned trial court merely on the basis of registered sale deed and in furtherance to that, making of entries in the revenue record, held that the possession of the complainants' injured and deceased persons over the agricultural land cannot be accepted. However, even after recording said finding, the trial court rejected the appellants' plea of self defence with reasons that if some persons came to take possession of the agricultural land or made efforts to show possession On the land, it cannot give any right to person in possession to use force beyond reasonable force. In the facts of the present case, the finding of the trial court is just and in accordance with law. The plea of right of private defence of a person has pre- condition that he has exercised his said right of private defence in exercise of good faith of his right of private defence. In the exercise, in good faith of right of private defence of person or property, if offender exceeds the power given by law and even causes death of the person against whom he is exercising such right of private defence, then it must be without pre-meditation and without any intention of giving more harm than it is necessary for the purpose of such defence. Looking to the large number of the persons from the side of the appellants who actually took part In the fight, it appears that the appellants were well prepared in the backdrop of long standing dispute between them and the complainants, to kill anybody whosoever came from the side of the complainant party. Inflicting of 23 injuries to Sugna Ram, 20 injuries to Shera Ram, 19 to Tiku Ram, 21 to Narayan Ram and 7 to Girdhari resulting into death of all above five persons proved beyond doubt that the appellants did not exercise their right of private defence to prevent person from taking possession of the land or acted to save themselves but they took part to kill these persons with full intention to kill the persons who have come from the side of the complainant party. The right of private defence available to a person is a defence and in exercise of said right of private defence, even death is caused of a person by the person exercising right of private defence, then that may not be a murder as defined under Section 300 IPC but there is distinction between right of private defence and killing a person in the garb of right of private defence. The offence of weapon may also have not much relevance in a case where murder has been caused by pre-meditation with clear intention but by blunt weapons. There may not be direct evidence of pre-meditation and forming common object or having common or specific intention of the accused committing offence but it is not much difficult to find out the pre-meditation and intention of the persons who, have inflicted the injuries upon the victims. In this case, if the large number of persons of the complainant party were the aggressors, then the strong determination with pre-meditation with clear intention of the accused appellants could have succeeded in killing five persons of the aggressors party, This fact finds support from the fact that if large number of aggressors attacked upon the appellants accused and their party, then they could have come prepared to defend themselves at least which would not have allowed death of five persons from the complainant party and injuries to the accused persons which substantially are simple in nature except a few which are grievous.
32. Here we may again recapitulate that presence of at least ten persons, if not more as alleged by prosecution (28 persons of accused party) - appellants on the scene of occurrence and their involvement in the incident is not in dispute. Death of five persons of the complainant party is also not in dispute, suffering of injuries by accused appellants also is proved and, therefore, there is no need to narrate in detail the oral evidence as well as documentary evidence produced by the prosecution and defence because of the reason that by all those evidence which has been discussed by the trial court in detail, both the parties only tried to prove that they had better right, title over the agricultural land in question and they were in possession of the land in question and they asserted their right by filing suit and obtaining injunction from the Court. All those pleas are only to save themselves from their conviction by the court by showing their right of private defence only. The courts decide the case on the basis of evidence on record. The trustworthy direct, ocular, fully reliable evidence is sufficient for conviction of the offender. The other are corroborative evidence. Corroborative evidence do not make the direct or ocular evidence reliable or trustworthy but it (corroborative evidence) only supports the view taken from the ocular evidence to be correct view leaving no slightest doubt about the reliability of ocular evidence. The direct evidence, therefore, if reliable, then needs no help of supporting evidence, though it may be very useful evidence. Trustworthy, direct and ocular evidence cannot be rejected because of absence or weakness of corroborative evidence. Here in this case, in view of the facts available on record and evidence, the trial court was right in convicting all the appellants.
33. In view of the fact that assuming best case of the appellants to be based on their right of private defence, the Court is convinced that even if all facts about their possession on the land in question are proved, even then, they are not entitled to be acquitted from the charges referred above for which they have been convicted. Non-explanation of the injuries or witnesses saying that they did not saw the injury on the body of the accused lost its significance because of the reason that from the proved and admitted facts, the finding about involvement of the appellants in the commission of crime cannot be declared illegal or contrary to the facts of the case. The non explanation of the injuries on the body of the accused persons in the facts of the present case has not affected the merits in the prosecution case. Some inconsistencies and some defects in an investigation are not fatal always for the prosecution.
34. The witnesses may be closest relatives but on this count alone, their testimony cannot be discarded. The close relation with the victim may be reason for telling truth because of the reason that the close relatives may not like to save the real accused, who has killed their nearest relative. There may be possibility that in the effort of getting punishment for guilty person some innocent person with whom relatives may have enmity may also be implicated but leaving the guilty person altogether and including other person who has not committed crime is ordinarily cannot be accepted, Minor discrepancies in the statement of the witnesses are not sufficient to discard their statement with respect to the material facts. The Hon'ble Supreme Court in the case delivered in Noratam Singh v. State of Punjab and Anr. reported in : 1978CriLJ1612 observed as under:
Discrepancies do not necessarily demolish testimony; delay does not necessarily spell unveracity and tortured technicalities do not necessarily upset conviction when the Court has had a perspicacious, sensitive and correctly oriented view of the evidence and probabilities to reach the conclusion it did. Proof of guilt is sustained despite little infirmities, tossing peccadilloes and peripheral probative shortfalls. The 'sacred cows' of shadowy doubts and marginal mistakes, processual or other, cannot deter the Court from punishing crime where it has been sensibly and substantially brought home....
35. Both the parties reaching to the place of occurrence i.e. on the agricultural land, an open place with pre-meditation and intention to inflict grave injuries on the persons of other party was not a sudden fight nor can be termed as a free fight and, therefore, they have rightly been convicted as members of an unlawful assembly and for rioting armed with deadly weapon under Section 149 IPC. They also have rightly been convicted under Section 307 IPC read with Section 149 IPC, Section 324 IPC read with Section 149 IPC, Section 325 IPC read with Section 149 IPC and Section 323 IPC read with Section 149 IPC along with Section 302 IPC read with Section 149 IPC.
36. The contention of learned Counsel for the appellants that the trial court did not rely upon the oral statement of prosecution witnesses as observed by the trial court about PW4 Bhagwana Ram, PW5 Thakar Ram, PW10 Harkha Ram, PW11 Girdhari and PW14 Bhagwana Ram as well as PW6 Lala Ram, PW8 Bhanwara Ram as well as other witnesses but we are of the view that the above witnesses' oral evidence cannot be rejected totally and the few discrepancies and exaggerations about the manner in which the incident took place and number of persons who were involved can be separated. Not only this that the case is proved by the prosecution from there own evidence but it is proved from the defence itself that all the 10 accused were involved in committing the offence and they themselves produced the evidence in support of their presence at the place of occurrence in defence. They also produced the site inspection report, copy of which was obtained from the cross case and other documentary evidence to show that they were present at the place of occurrence and incident occurred and they were involved. In fact, their plea is based on the question of law on the basis of admitted facts raising a plea of right of private defence which has been rejected by the trial court and as mentioned above, by this Court also. Therefore, the alleged inconsistencies or contradictions and improvements in the statement of the prosecution witnesses has no affect on the prosecution case.
37. In view of the above discussion, we do not find any merit in this appeal. Accordingly, the appeal of the appellants is dismissed.
38. During the pendency of this appeal, appellant No. 7 Amra Ram died and his appeal has been dismissed as abated vide order dated 12.5.2003 and appellant No. 2 Nirana Ram also died and his appeal has also been dismissed as abated vide order dated 9.10.2006.
39. Appellant No. 1 Smt. Bhanwari was released on bail vide order dated 14.7.2001. Since her appeal has been dismissed, therefore, her bail bonds are cancelled and she should surrender to serve the remaining part of her sentence.