JUDGMENT 1. The two appeals listed above have arisen out of the judgment dated August 28, 1975, of the Sessions Judge, Jhunjhunu, in Sessions Case No. 104 of 1974. They can, therefore, be disposed of together. 2. Ghisa and Udami, appellants in D. B. Criminal Appeal No. 624 of 1975, and Hanuman, Savitri and Maya, the respondents in D. B. Criminal Appeal No. 221 of 1976, were tried together on different charges including the charge under section 302 read with section 149 IPC. The prosecution against them was launched on the basis of a FIR lodged with police station Singhana, District Jhunjhunu, by Narpat (P. W. 3) on June 16, 1974 at 9 A. M. Narpat informed the police that earlier that morning Chawali (P. W. 7) had approached him weeping and crying in the Dhani of Sohan Ahir and complained that Hanuman Ahir and his sons and daughters, namely, Nand Ram, Pooran, Udami, Ghisa, Savitri and Maya, all the seven accused in this case, armed with various weapons had inflicted injuries to her father-in-law, Nand Ram, and brother-in-law, Gokul, and that the injured were lying unconscious in their field. Narpat further mentioned to the police that Chawali had told him that the accused had attacked Nand Ram and Gokul in the latter's field situate in the area of Hirwa-ki-Dhani. What happened was that Nand Ram and Gokul had sown some crop in their field and the accused committed criminal trespass therein to plough it and thus, uproot the crop. Nand Ram and Gokul, objected to it. The accused who were armed with deadly weapons, like Farsi, Kulhari, Jelly attacked them and inflicted numerous blows. Chawali and Ramgirilal (P. W. 6) tried to intervene and they were also beaten by the accused. Chawali is said to have further told Narpat that she was chased by the accused from the scene of occurrence to the house of Multi Meena. (P. W. 2), and that, it was Multi, who protected her from further injuries. 3. A. S. I. Prabhu Singh (P. W. 8), recorded the F. I. R. (Ex. P. 2) as mentioned above. After recording it, he accompanied Narpat from the police station to the scene of occurrence in the area of Hirwa-ki-Dhani. He saw that Nand Ram and Gokul were lying unconscious in two different cots in Nand Ram's field. Ramgiri was also present in an injured condition. P. 2) as mentioned above. After recording it, he accompanied Narpat from the police station to the scene of occurrence in the area of Hirwa-ki-Dhani. He saw that Nand Ram and Gokul were lying unconscious in two different cots in Nand Ram's field. Ramgiri was also present in an injured condition. He removed all the three injured to the Civil Hospital, Singhana. Dr. Nawab Ali (P. W. 6) declared that Gokul was already dead. Nand Ram (P. W. 10) was too seriously injured to be able to make any statement to the police. Ramgiri gave an eye-witness account of the occurrence to A. S. I. Prabhu Singh. 4. On completion of the investigation Hanuman, Ghisa, Udami, Savitri and Maya were sent up for trial. The other two accused, namely, Pooran and Nandlal were absconding at that time. They could not, therefore, be tried jointly with the other accused. 5. During the trial, the prosecution examined Bajrang, Multi, Narpat, Bholu, Ramgiri, Dr. Nawab Ali, Chawali, A. S. I. Prabhu Singh, S. I. Ramesh Chand and Nand Ram as witnesses in support of its case. In addition to the injured, namely, Nand Ram, Chawali and Ramgiri, Bholu and Bajrang were also examined as eyewitnesses of the occurrence. Narpat is a witness to whom Chawali had given the first version of the occurrence and on hearing which he had gone to Nand Ram's field where, Nand Ram, Gokul and Ramgiri were lying injured. He then went to the police station and lodged the F. I. R. there. Dr. Nawab Ali conducted the postmortem on the dead-body of Gokul and examined the injured, namely, Ramgiri, Nand Ram and Cnawali. A. S. I. Prabhu Singh and S. I. Ramesh Chandra investigated this case. By and large, all these witnesses have supported the prosecution case as narrated above. 6. In their statements under Section 313 Cr. P. C. Ghisa and Udami admitted that they had inflicted various injuries to Gokul deceased and Nand Ram and Ramgiri P. Ws, They, however, pleaded that they had inflicted injuries to them in self defence. According to them, Gokul deceased and Nand Ram and Ramgiri (P.Ws) had first attacked them and inflicted injuries to them. Hanuman, Maya and Savitri accused pleaded alibi stating that they were not present at the time when the fight took place resulting in injuries to both sides. 7. The accused examined Dr. According to them, Gokul deceased and Nand Ram and Ramgiri (P.Ws) had first attacked them and inflicted injuries to them. Hanuman, Maya and Savitri accused pleaded alibi stating that they were not present at the time when the fight took place resulting in injuries to both sides. 7. The accused examined Dr. Bharat Singh and Bir Bahadur as witnesses in defence. 8. Learned trial Judge acquitted Hanuman, Savitri and Maya of all the charges framed against them. Udami and Ghisa were convicted and sentenced as- under:- (i) Imprisonment for life under section 302 I. P. C. for the murder of Gokul. (ii) Rigorous imprisonment for four months each under section 447 I.P.C. (iii) Rigorous imprisonment for two years under section 325 read with section 34 I. P. C. for causing grievous hurt to Nand Ram (P.W.) In addition, Udami was also convicted under section 324 I. P. C. for causing hurt to Nand Ram and sentenced on that count to rigorous imprisonment for one year. B. All the sentences mentioned above were ordered to run concurrently. 9. As already stated, Ghisa and Udami have appealed from the order of conviction and sentence passed against them. State of Rajasthan has appealed from the order of acquittal in favour of Hanuman, Savitri and Maya. 10. It will be convenient to first deal with the charge under section 447 I. P. C. All the five accused were charged under section 447 I. P. C. on the allegation that they had committed criminal trespass into the agricultural land comprising field No. 347/2 situate in the area of Hirwa, belonging to and in possession of Nand Ram (P. W.) and Gokul deceased. To prove that possession of this land at the material time was with Nand Ram and Gokul, the prosecution placed reliance on the documents Ex. P. 25, Ex. P. 26, Ex. P. 27, Ex. P. 28, Ex. P. 29, Ex. P. 30 and the oral evidence of P. Ws, Bajrang, Ramgiri, Chawali and Nand Ram. 11. On the other hand, the accused produced documents Ex. D. 10 and Ex. D. 11, in support of their defence that land comprising field No. 342/2 had been in their possession at the relevant time. An application was made on behalf of the accused in the course of arguments in this court for leave to produce another document by way of additional evidence. D. 10 and Ex. D. 11, in support of their defence that land comprising field No. 342/2 had been in their possession at the relevant time. An application was made on behalf of the accused in the course of arguments in this court for leave to produce another document by way of additional evidence. The said application was dismissed because, we felt that the document sought to be produced by way of additional evidence at this stage is not relevant as to the question of possession of this land at the time of the occurrence.It will be seen that this document deals with the situation as it obtained in the year 1959. The occurrence took place on June 16, 1974. This document cannot be of any help in determining the question of possession in June, 1974. 12. In fact, even the documents, already produced by both sides during the course of trial, do not help us in deciding the question of possession. Ex. P. 29 and Ex. P. 30 purport to be sale-deeds. Whereby Nand Ram claims to have purchased the land in dispute from Samunder Singh in 1969 and 1970 Ex. P. 25 and Ex. P. 27 are the mutation entries sanctioned by the revenue officers on the basis of these sale deeds. It is contended on behalf of the accused that these documents do not create any valid title in the land in dispute in favour of Nand Ram, for, according, to learned counsel, Samundar Singh, the vendor had himself no title in this land. We are not called upon to decide the question of title in this case. So far as the question of possession is concerned, these documents will not help the prosecution to prove that this land was in occultation of Nand Ram on or about June 16, 1974 when the present occurrence took place. 13. Similarly, the documents Ex. D. 10 and Ex. D. 11 relied upon by the defence are not relevant. Ex. D. 10 purports to be the copy of an order passed by a revenue court on April 26, 1972 restraining Nand Ram and others from interfering with the possession of Hanuman accused and others. Over the land in dispute. This order appears to have been passed on the basis of the report of a local Commissioner, dated, June 18, 1972 Ex. D. 11 is a copy of the said report. Over the land in dispute. This order appears to have been passed on the basis of the report of a local Commissioner, dated, June 18, 1972 Ex. D. 11 is a copy of the said report. An order of temporary injunction passed by a revenue court on the basis of the report of a local Commissioner appointed by it is not a relevant fact to prove possession under any section of Chapter II Evidence Act, dealing with "Relevancy of Facts." 14. We must, therefore, turn to the oral evidence to adjudicate upon the question of possession. As already stated, the prosecution has examined four witnesses to prove that possession at the material time was with Nand Ram (P. W.). The accused did not produce any evidence in rebuttal. All the four witnesses namely, Bajrang, Nand Ram, Ramgiri and Chawali testified that the land in dispute had been under the cultivation of Nandram at and before the time of occurrence. It may be argued that the evidence of Nandram, Ramgiri and Chawali to the effect that Nandram had been cultivating this land for six or seven years continuously till the occurrence is in the nature of self-serving and interested testimony. No such criticism can, however, be made against the evidence of Bajrang who deposed that the land in dispute had been under the cultivation of Nandram at and before the time of occurrence. It is significant to note that Bajrang's testimony that this and was in possession of Nandram (PW) at the relevant time was allowed to go unchallenged in cross examination. Bajrang's residential house is situate very near the land in dispute. He testified that it is only 300 paces from this land. He was, therefore, in a position to know first hand as to who had been cultivating this land before and at the time of this occurrence. There is no reason why the court should not place full reliance on his testimony that this land was in cultivator possession of Nand Ram on June 16, 1974, when the accused committed criminal trespass into it with intent to evict Nand Ram by force. 15. As already stated, the accused did not produce any evidence to rebut the evidence produced by the prosecution. 15. As already stated, the accused did not produce any evidence to rebut the evidence produced by the prosecution. A close look at the questions put in cross-examination by the learned defence counsel to some witnesses for the prosecution would reveal that the claim of the accused that they were in possession of this land at the relevant time is wholly insincere and artificial. For example, a vague suggestion was made in cross examination to Nandi Ram P. W. that in fact, Hanuman accused had sown this land without disclosing as to what crop had been sown by him. Nand Ram of course, denied the suggestion. He asserted that he had himself sown bajra seed in this land a few days before the occurrence, and that the accused had started re-ploughing it on June 16, 1974, morning, in an attempt to destroy the said crop. This act of re-ploughing on the part of the accused led to violence resulting in the death of Gokul and injuries to Nand Ram, Ramgiri and Chawli P. W.s. 16. We are, thus, satisfied that the learned trial judge arrived at the correct conclusion in holding that the land in dispute was in actual physical possession of Na.id Ram P. W. at the material time and that the accused had committed criminal trespass into it. 17. After going through the ocular evidence given by P. W.s Bajrang, Mulki, Bholu, Nand Ram, Ramgiri and Chawali, we are fully convinced that appellants Ghisa and Udami (who have been convicted by the trial court) and Hanuman, Savitri and Maya (who have been acquitted by the trial court), alongwith Pooran and Nand Lal, who were absconding at the time when the police submitted the present challan committed criminal trespass into the land in dispute which was in possession of Nand Ram P. W. at that time. As will be presently seen, all these witnesses have, by and large, given a truthful account of the occurrence. 18. P. Ws. Bajrang, Mulki and Bholu are wholly independent witnesses who have no partiality or bias for or against any of the rival parties. Bajrang is a Jat by caste. Bholu is a cobbler by profession. Mulki belongs to the Mina community. The members of the accused and complainant parties are all a hires by caste. 18. P. Ws. Bajrang, Mulki and Bholu are wholly independent witnesses who have no partiality or bias for or against any of the rival parties. Bajrang is a Jat by caste. Bholu is a cobbler by profession. Mulki belongs to the Mina community. The members of the accused and complainant parties are all a hires by caste. Learned defence counsel who cross examined these witnesses at considerable length was not able to bring on record any circumstance which may incline us to doubt their veracity. They are, in our opinion, wholly disinterested witnesses who would not come forward to depose falsely in a case involving, as rival parties, members of an alien community. They gave evidence because, as witnesses summoned by the court, they could not help stating the truth as they saw it. 19. P. W. Bajrang recalled that the marriage party of his son had returned to the village on June 15, 1974, and that on June 16, morning, when the occurrence took place within ear shot of his house, the guests were still around there. On hearing noise from the direction of the land of Nand Ram P. W. he rushed that side. Bholu cobbler's house is on the way. Bholu joined him. Both of them reached the scene of offence together and saw that all the five accused (Hanuman, Ghisa, Udmi, Maya and Savitri), along with the absconders (Pooran and Nand Lal ) were belabouring Gokul deceased, Nand Ram and Ramgiri P. Ws. Bajrang further stated that the accused threatened him and Bholu and thus kept them at bay with the result that they could not do anything by way of help to victims. He quite frankly admitted that he could not say as to which accused inflicted what injury to Gokul, Nand Ram and Ramgiri. He of course, stated that the five accused and their two companions carried deadly weapons like barchhi, kulhari, jail, kulliari, and lathi. He explained that he had to go back to his house to see off his guests and that, therefore he went back to his house leaving behind Bholu at the scene of occurrence. 20. P. W. Bholu, a village cobbler, stated that his residential house is sit teat a distance of nearly 250 paces from the scene of occurrence. He explained that he had to go back to his house to see off his guests and that, therefore he went back to his house leaving behind Bholu at the scene of occurrence. 20. P. W. Bholu, a village cobbler, stated that his residential house is sit teat a distance of nearly 250 paces from the scene of occurrence. He further stated that he and Bajrang went to the scene of offence together and saw the accrued beating Gokul, Nand Ram and Ramgiri who had already fallen before the witnesses reached there. Bholu further stated that he had brought from Gokul deceased' house two cots in which Gokul and Nand Ram were laid at the scene of offence He also explained that he had left the spot to inform Puhunia people about t occurrence and while going he saw that Narpat and others were already on the way to the spot. He did not, therefore, consider it necessary to go to any one t give information about the occurrence. 21. Bholu denied all suggestions in cross-examination that his relatio with Hanuman accused were strained. There is nothing on the record to indica any such strain as suggested. We are satisfied that, like Bajrang, Bholu is independent witness on whose testimony one may put implicit reliance. 22. Some argument was raised by learned defence counsel regarding omission from the F. I. R. of the Bajrang and Bholu in the category of eye-witnesses of the occurrence. It will be recalled that the F. I. R. in the case was regeared at the instance of Narpat P. W. who is not an eye-witness of the occurrence. Narpat gave the police a hearsay account as he heard it from Chawali P. W. It will be presently seen that by the time Chawali left the scene of occurrence, Bajrang and Bholu had not yet reached there, It is, therefore, quite likely that, when Narpat lodged the F. I R. It was not within his knowledge that Bajrang and Bholu had witnessed the occurrence after Chawli had escaped from there on receipt of a couple of blows in the initial stages of the assault. 23. P. W. Ramgiri is the widow of Gokul who was killed in the course of this transaction. 23. P. W. Ramgiri is the widow of Gokul who was killed in the course of this transaction. She stated that their residential house (dhani) is situate at a distance of nearly 80 paces from the scene of offence, and that, on the fateful morning she was working inside the house when she heard cries from their field. She came out and saw that her husband Gokul and father in law, Nand Ram, were under attack by the accused. Her sister, Chawali P. W. also came out along with her. Both of them rushed to the field and saw that Hanuman, Nand Lal , Pooran, Udmi, Ghisa, Maya and Savitri were inflicting blows to Gokul and Nand Ram. She quite frankly stated that it would not be possible for her to describe as to which injury was inflicted by them. She, of course, gave such description regarding her own injuries' She stated that in order to provide cover to her fallen husband she was bending over his body when Maya gave a rampi blow on her head and Nand Lal , Udmi and Pooran followed suit with their respective weapons. 24. P.W. Chawli stated that she was churning milk in her dhani when she heard the noise. She went out of the house along with her sister, Ramgiri P.W. Both of them went to the scene of occurrence and saw Gokul and Nand Ram being beaten. They tried to intercede. She stated that Pooran gave her two lathi blows which made her flee the scene of occurrence. She took shelter in the house of Muiki Mina nearby. She testified that accused Ghisa, Udmi and Pooran had chased her right upto the house of Mulki. She further stated that leaving her children in the safety of Mulki's house, she rushed to the well of Thakur Singh where she narrated the occurrence to him, Sheo Narain and Narpat P. W. All three of them accompanied her to the scene of offence and saw for themselves Gokul, Nand Ram and Ramgiri lying injured and unable to speak. 25. It is significant to note that Chawli did not mention that, by the time she ran away from the scene of offence, Bajrang and Bholu had reached there. This means that they had not reached there. 25. It is significant to note that Chawli did not mention that, by the time she ran away from the scene of offence, Bajrang and Bholu had reached there. This means that they had not reached there. That is why Chawli could not possibly mention their names to P. W. Narpat as being the eye-witnesses of the occurrence. 26. P.W. Mulki Mina has fully corroborated the testimony of Chawli in that she recalled that Ghisa, Udmi and Pooran accused had given Chawli a hot chase right upto Mulki's house, and that, she could save Chawli from further injuries at their hands only by swearing upon Ganga Jai that she would not let them kill Chawli. She recalled that when Chawli came there she was already having some injuries on her person, and that, Chawli went away from her house leaving her children there. 27. P. W Nand P.am stated he had purchased the land in dispute 6 or 7 years earlier and that, he had sown bajra in it just 15 days before the occurrence. He further stated that he had even erected a residential house there. On the fateful morning, his son, Gokul deceased, came to him and informed him that the accused were ploughing the land and thus uprooting their bajra crop. He testified that he accompanied Gokul deceased to the spot and saw that Ghisa and Pooran accused were ploughing the land and the other five were waiting there. He recalled that as soon as Gokul reached near the accused Ghisa and Udmi attacked him with their respective weapons (barchhis), inflicted one blow each on his head and thus felled him. Others inflicted further blows to the fallen man. Nand Ram then described how he was injured. He stated that when he tried to intercede to save his son, Udmi struck a barclihi blow on his head. Pooran gave a lathi blow on his arm, fell down. More blows were inflicted to him after he had fallen. He also stated that when Chawli and Ramgiri, his two daughter-in-law, arrived there, they too were beaten by the accused. 28. Pooran gave a lathi blow on his arm, fell down. More blows were inflicted to him after he had fallen. He also stated that when Chawli and Ramgiri, his two daughter-in-law, arrived there, they too were beaten by the accused. 28. As stated earlier, the defence version is that Ghisa and Udmi accused were irrigating their jo war crop on the day of occurrence in the morning and that, Gokul deceased, Nand Ram P. W. and Ramgiri P. W. suddenly arrived at the well of the accused and began to beat them. The accused's further plea is that they wielded their Kasias in self defence and that, they did inflict injuries to Gokul, Nand Ram and Ramgiri. Ghisa and Udmi got themselves examined, two days, after the occurrence, by Dr. Bharat Singh of Chirawa Hospital instead of the doctor concerned at Singhana. Dr. Bharat Singh who appeared as D. W. 1 deposed that the injuries found on Ghisa and Udmi were minor bruises, abrasions or contusions and that these could be suffered by a fall and could also be self-inflicted. It is difficult, if not impossible to believe the accused that Gokul, Nand Ram and Ramgiri had arrived at the well of the accused to mount an attack on them while they were engaged in irrigating their jo war crop and that they opened the attack causing injuries to both the accused. It is significant to note that the accused in their statements under section 313 Cr. P. C. did not disclose as to what were the so-called weapons with which Gokul, Nand Ram and Ramgiri inflicted the injuries to them. Had any such attack as alleged, been made by Gokul deceased, Nand Ram and Ramgiri P. W. Ghisa and Udmi would have certainly sustained more serious injuries than mere bruises abrasions and contusions. More-over, it is conclusively proved on the record that the scene of occurrence is not the well of the accused, but the agricultural land in occupation of Nand Ram P. W. which is at some distance from the well. 29. For all these reasons, we have no hesitation in rejecting the theory of self-defence as wholly concocted and false. The prosecution evidence, as discussed above is quite consistent and convincing. 29. For all these reasons, we have no hesitation in rejecting the theory of self-defence as wholly concocted and false. The prosecution evidence, as discussed above is quite consistent and convincing. It is conclusively proved that all the five accused and the two absconders committed criminal trespass into the land in possession of Nand Ram P. W. They went there armed with deadly weapons to meet the eventuality of Nand Ram resisting their attempt to take forcible possession of that land. When Nand Ram and his son Gokul deceased protested their high handedness and tried to resist it, Ghisa and Udmi first attacked Gokul inflicting barchhi blows on his head and thus felling him on the ground. On Nand Ram's intercession to save his son, Udmi accused gave a barchhi blow on his head and Pooran (absconder) gave a stick blow on his arm. Nand Ram fell down. Pooran gave him further blows with a jaili. 30. It is proved on the evidence of Dr. Nawab Ali who conducted the post-mortem that Gokul had three incised wounds on his head, each one involving fracture of the bones. The frontal bone was out through and through at its right lateral as a result of the first injury. The second injury also out through the frontal bone, going deep and thus cutting the membrane and the tissues of the brain as well. The third injury on the head involved fracture of the temporal bone on the right side. These three injuries were individually sufficient in ordinary course of nature to cause death. Two of these injuries were caused by Ghisa and Udmi. It will be recalled that they opened the attack inflicting one barchhi blow each on the head of Gokul deceased. He fell down as a result of these injuries. Ghisa and Udmi are, therefore, guilty of murder of Gokul. They inflicted at least one fatal blow each to the deceased. 31. All the five accused are, as already held, guilty of the offence of criminal trespass punishable under section 447 I. P. C. They are also guilty of the offence of rioting armed with deadly weapons, punishable under section 148 I.P.C. The common object of this unlawful assembly was the commission of the offence of criminal trespass and causing hurt to resisters, if necessary. It is difficult on the evidence on record to hold that the children, Maya and Savitri, and the old man, Hanuman, shared the object or intention of Ghisa and Udami to kill Gokul. It appears that Ghisa and Udami attacked and killed Gokul on an adventure of their own. The old man and the children cannot he said to have shared the object of Ghisa and Udami to kill Gokul. Maya who gave a rampi blow to Ramgiri P. W., is of course, guilty under section 324 I.P.C. Similarly, Hanuman, Savitri and Maya are guilty of causing hurt to Nand Ram. They are proved to have joined Ghisa and Udami in causing hurt to Nand Ram. They may, therefore, be safely convicted under section 325 read with section 149 I.P.C. 32. In conclusion, we find no force in the appeal filed by Ghisa and Udami. We affirm the order of conviction and sentence passed against them by the trial count under section 302 and 447 I.P.C. The order of conviction passed under section 325 read with section 34 I.P.C. is altered to one of conviction under section 325 read with section 149 I.P.C. The sentence passed under that count is however affirmed. As ordered by the trial court, all the three sentences will run concurrently. 33. The appeal filed by the State is allowed to the extent indicated above, and the acquittal of Hanuman, Savitri and Maya under sections 148, 447,325-149 I.P.C. is, therefore, set aside. They are convicted under sections 148, 447 and 325-149 I.P.C. Maya is further convicted under section 324 I.P.C. for causing hurt to Ramgiri P.W. Hanuman is sentenced under section 325-149 I.P.C, to rigorous imprisonment for the period he has already undergone until and during the trial. No separate sentence need be awarded to him under sections 447 and 148 I.P.C. 34. Accused Savitri and Maya are below 18 years of age. They belong to the weaker sex. No useful purpose will be serve by sending them to jail after so long a time, rather there is a danger of their adopting a life of crime in case, of their being sent to jail, because,.they will be kept in the company of hardened criminals. They are sentenced to imprisonment for the period they have already undergone until and during the course of trialAppeal dismissed. *******