JUDGMENT 1. - The appellants were the accused in Sessions Case No. 79 of 1992 on the file of the Addl. District and Sessions Judge, Bayana (Bharatpur). They were found guilty and convicted as under: (i) Accused Makhan- U/Sec. 302 I.P.C.- Life imprisonment and fine of Rs. 500/- in default to further undergo six months R.I. U/Sec. 148 I.P.C. One year R.I. U/Sec. 447 I.P.C. 6 months R.I. U/Sec. 323 I.P.C. 6 months R.I. (ii) Accused Gokula- U/Sec. 302 I.P.C.- Life imprisonment and fine of Rs. 500/- in default to further undergo six months R.I. U/Sec. 148 I.P.C. - One year R.I. U/Sec. 447 I.P.C. - 6 months R.I. U/Sec. 323 I.P.C. - 6 months R.I. (iii) Accused Natthi- U/Secs. 302/149 IPC- Life imprisonment and fine of Rs. 500/- in default to further undergo six months R.I. U/Sec. 148 I.P.C. - One year R.I. U/Sec. 447 I.P.C. - 6 months R.I. U/Sec. 323 I.P.C. - 6 months R.I. (iv) Accused Karan Singh- U/Sec. 302/149 IPC- Life imprisonment and fine of Rs. 500/- in default to further undergo six months R.I. U/Sec. 148 I.P.C. - One year R.I. U/Sec. 447 I.P.C. - 6 months R.I. U/Sec. 323 I.P.C. - 6 months R.I. (v) Accused Ram Baharosi- U/Sec. 302/149 IPC- Life imprisonment and fine of Rs. 500/- in default to further undergo six months R.I. U/Sec. 148 I.P.C. - One year R.I. U/Sec. 447 I.P.C. - 6 months R.I. U/Sec. 323 I.P.C. - 6 months R.I. 2. Aggrieved by the conviction and sentence, the present action for filing the appeal has been resorted to. 3. Prosecution story is very concise and is the following : 'Informant Narendra Singh at about 7 p.m. on 7.8.1992 instituted FIR. (Ex. P7) with the Police Station, Roopwas against the present appellants alleging therein that agriculture land 'Pattias Choka Wali" measuring five bighas, situated in Village Milsuma had been owned and possessed by his father in the capacity of Khatedar. They had sown Bajra crop on the said land. On 6.8.92 at about 3 p.m. his younger brother Shiv Ram and his son Ajay Kumar @ Neta had gone towards the land and found Natthi, Gokula, Karan Singh, Ram Bharosi and Makhan dislodging their Bajra crop. Two women and one girl were also there. On being questioned by Shiv Ram, Makhan and Gokula started showering bullets inflicted injuries on the person of Shiv Ram. Two women and one girl were also there. On being questioned by Shiv Ram, Makhan and Gokula started showering bullets inflicted injuries on the person of Shiv Ram. Shiv Ram's condition was serious therefore from Bharatpur he was referred to Agra. The women caused injuries with the help of stones and remaining persons inflicted lathi blows when he reached the village in the night at about 2 a.m., he came to know about the said incident. Ajay Kumar has also sustained injuries. Murari and Ramsuran were the eye-witnesses of the incident. 3. The Police Station Roop was registered a case under sections 147,148,149, 323 and 307 of the IPC and investigation commenced. After the death of Shiv Ram on 8.8.92 the case was converted u / Section , IPC. The 1.0., on completion of the investigation filed a charge-sheet in the Court of Addl. Munsiff and Judicial Magistrate, Bayana against the appellants for offences under sections 147, 148, 149, 302, 447 and 323 of the IPC read with Sections 3/25 of the Arms Act. The I.O. also filed a charge-sheet against Smt. Meera, Phoolan Dei and Somoti before said Magistrate, from where both the cases were committed to the Trial Court. 4. The Trial Court on 16.1.93 framed charges against the appellants as under : Gokul and Makhan- u/Sets. 147,148, 323, 447 and 302, IPC. Ram Bharose, Natthi and Karan Singh- u/Sees. 147, 148, 323, 447 and 302/149, IPC 447 and 302/149, IPC. 5. Charges were framed against Smt. Meera, Phoolan Dei and Somoti. 6. As both the cases arose out of same FIR, the Trial Court clubbed the cases together. 7. That the appellants denied the charges and claimed trial. 8. The prosecution examined as many as 15 witnesses and produced about 37 documents. Statements of appellants under section 313 of the Code of Criminal Procedure were recorded in which appellants stated that complainant party wanted t(3 snatch their land and that is why they were implicated falsely in a criminal case. 9. The appellant Ram Bharose moved an application under section 315 of the Code of Criminal Procedure and he was allowed by the Trial Court to appear as a defence witness (DW 1). As many as nine documents were produced by him in support of defence version. 10. 9. The appellant Ram Bharose moved an application under section 315 of the Code of Criminal Procedure and he was allowed by the Trial Court to appear as a defence witness (DW 1). As many as nine documents were produced by him in support of defence version. 10. The Trial Court has, however on consideration of evidence recorded the order of conviction and passed the sentence mentioned herein above however Smt. Phoolan Dei and Somoti were acquitted from the charges framed against them. 11. We have heard the arguments advanced by the learned Counsels for both the parties and perused the entire record. Mr. Biri Singh, learned Counsel for the appellants made a scathing criticism on the finding made by the Trial Court. He asserted that no explanation was given by the prosecution for the delayed FIR. The appellants were in the possession of the land in dispute and complainant party was the aggressor and wanted to forcibly dispossess the appellants. The appellants had right of private defence against their property. 12. Mr. Agrawal, Public Prosecutor and Mr. Alok Sharma Counsel for the complainant have vehemently supported the judgment of the Trial Court. 13. In order to appreciate the rival contentions raised before us, we find necessary to discuss the evidence adduced in this case. 14. PW 1 Ajay is the witness of site plan as well as recovery memos of the cloths he is also a signatory of Panchayatnama. PW 3 Murari has stated that at about 3 p.m. he and Ramsuran were grazing the buffaloes in the field of Chairman Gaj Singh. At the same time Shiv Ram and his nephew Neta @ Vijay reached there in a tractor, when they reached near the field 'Choka Wali Pattia', Ram Bharose, Gokula, Natthi, Makhan, Ram Rati, Meera and Phoolan Dei came over there. Except Ram Rati, Meera and Phoolan Dei, all the persons were armed with lathies. Then he stated that only Karan, Natthi and Ram Bharosi were armed with lathies whereas Gokula and Makhan were having fire arms. The accused persons were standing in the field. On being questioned by Shiv Ram as to why they were ploughing his field. Makhan opened fire which caused injury on the face, and neck of Shiv Ram. Thereafter Gokula opened fire which caused injury on the face, neck and left hand. Karan inflicted lathi blow near the ear of Shiv Ram. The accused persons were standing in the field. On being questioned by Shiv Ram as to why they were ploughing his field. Makhan opened fire which caused injury on the face, and neck of Shiv Ram. Thereafter Gokula opened fire which caused injury on the face, neck and left hand. Karan inflicted lathi blow near the ear of Shiv Ram. Another lathi blow was inflicted by Natthi on his shoulder Ram Bharose inflicted injury in the elbow of Shiv Ram and the ladies had pelted stones, when Neta intervened Ram Bharose inflicted lathi blow on his both hands. Ramsaran, Neta and he took Shiv Ram to the village and thereafter he was admitted in the hospital situated in Bharatpur. From where he was referred to Agra when the witness reached Agra he found Shiv Ram dead. PW 3 Vijay @ Neta stated that on 6.8.92 at about 2-3 p.m. he and his uncle Shiv Ram Singh had gone to his field 'Choka Wali Pattias' on a tractor. When they reached near their field they found Makhan, Gokula, Karan, Natthi, Ram Bharose, Phoolan Dei, Ram Rati @ Somoti and Meera in their field. They were ploughing the field. Uncle Shiv Ram got down from the tractor and asked them as to why they were ploughing his field. At this Makhan opened fire and caused injuries on the person of Shiv Ram, thereafter Gokula opened fire and caused injury on the face, neck and left hand of Shiv Ram. Karan, Natthi and Ram Bharose inflicted lathi blow on the person of Shiv Ram and women pelted stones at him. When attempted to intervene, he sustained injury on his person caused by accused Ram Bharose. PW 4 Ramsaran has also corroborated the incident narrated by above two witnesses. PW 5 Narendra Singh who is the elder brother of Shiv Ram, stated that the appellants and Ram Rati, Phoolan Dei and Meera were dislodging their crop and on being questioned by Shiv Ram appellant Makhan opened fire and caused injury on the face of Shiv Ram and another fire was opened by Gokula which caused injury on the neck of Shiv Ram. Other appellants inflicted lathi blows on his person thereby caused injury on his shoulder arm pit and elbow. Women pelted stones at him. Vijay Singh sustained injuries by lathi blows caused by Karan and Ram Bharose. Other appellants inflicted lathi blows on his person thereby caused injury on his shoulder arm pit and elbow. Women pelted stones at him. Vijay Singh sustained injuries by lathi blows caused by Karan and Ram Bharose. PW 6 Ashok Kumar is signatory of Panchayatnama of the dead body of deceased Shiv Ram. The I.O. recovered blood stained cloths of Vijay Singh and deceased Shiv Ram in front of him. PW 7Nek Ram stated that police recovered lathies on the information of appellant Ram Bharose, Nathi and Karan and recovery memo as well as site plan of the place of recovery were prepared in front of him. PW 8 Raghuveer @ Pappu stated that in his presence fire arms were recovered at the instance of the appellant Gopala and Makhan Singh and recovery memos were prepared on which he had signed. PW 9 Surendra is also a witness of fire arms recovery. PW 10 Pothi Prasad, ASI, Police Station Roopwas had conducted a part of investigation of the case. PW 11 Dr. B.L. Meena examined the injuries sustained by deceased Shiv Ram as well as injured Vijay Kumar. PW 12 Dr. S.U. Qureshi conducted postmortem of the dead body of deceased Shiv Ram. PW 13 Hari Ram Sharma, Patwari had proved the issuance of revenue records of the land in dispute he stated that the land in dispute was entered in the name of Kishan Singh. PW 14 Ganga Singh Chauhan had conducted major part of the investigation. PW 15, Harish Chand, Police Line Bharatpur had inspected fire arms and stated that fire arms were in order. He got training of inspection of fire arms from Rajasthan Police Training Centre, Jodhpur. 15. Now we proceed to examine the defence version. DW 1 Ram Bharose (appellant) appeared as defence witness and produced as many as nine documents showing that Kishan Singh and the complainant party were never in possession of the land in dispute. Kishan Singh obtained a decree in his favour by making fraud upon the Court and a civil suit was pending in the Court of Munsiff Roopwas pertaining to cancellation of the said decree. Certified copy of the plan, stay order granted by the Court and copies of Jama Bandi and other documents have been produced by him showing their continuous and long possession over the land in dispute. 16. A perusal of post-mortem report (Ex. Certified copy of the plan, stay order granted by the Court and copies of Jama Bandi and other documents have been produced by him showing their continuous and long possession over the land in dispute. 16. A perusal of post-mortem report (Ex. P13) reveals that Shiv Ram sustained following ante-mortem injuries. 1. Multiple gun shots wounds on the whole face including forehead. 2. Gun shot wound of entry 1 cm x 1 cm muscle deep right side at the root of neck. 3. Gun shot wound exit 2cm x 1.5cm on right side of the neck 4 cm. above injury No. 2. 4. Gun shot wound of entry 1 cm x 1 cm on right side of neck through & through neck on left side. 5. Gun shot wound of exit 3 cm. x 2cm on left side neck upper part below mandible. 6. Left eye cornea hazi & cornea iris & juntiva ruptured-clotted blood present. 7. Right eye cornea hazi & ruptured at middle clotted blood present. 17. A look at the injuries No. 2, 3, 4 and 5 goes to show that one gun shot entered from the right side of the neck and caused exit wound on the left side of the neck, and another gun shot entered from the left side of the neck and caused exit wound on the right side of the neck. Appellants Makhan and Gokul are the authors of the fire arm injuries. Murari (PW 2), Vijay Q Neta (PW 3) Ramsaran (PW 4), Narendra Singh (PW 5) have consistently stated that Makhan and Gokula opened fires and thereby caused injuries on the neck and face of the deceased Shiv Ram. These testimony could not be shattered in the cross-examination by the defence. 18. Dr. Qureshi (PW 12) in his cross-examination, stated that injuries sustained by the deceased could not be caused by one gun shot. Now question arises as to who inflicted fatal injury? The prosecution has failed to answer this question. 19. Appellant Makhan is guilty of inflicting one gun shot injury on the neck of the deceased, and appellant Gokula also guilty of inflicting another gun shot injury again on the neck of the deceased. But as to who caused the fatal injury, the prosecution evidence is silent on this point. 20. The prosecution has failed to answer this question. 19. Appellant Makhan is guilty of inflicting one gun shot injury on the neck of the deceased, and appellant Gokula also guilty of inflicting another gun shot injury again on the neck of the deceased. But as to who caused the fatal injury, the prosecution evidence is silent on this point. 20. In Siddapuram Siva Raaay & Another v. State of A.P. reported in 1995 Cr.L.J. 701=111 (1995) CC R 555 the D.B. of Andhra Pradesh High Court observed as under : "Judging from the fact that A-1 and A-2 dealt each one blow and that the blows inflicted by them with the same sticks on the other person did not prove fatal, we find it difficult to agree with the conclusion of the learned trial Judge that the accused intended to cause the death of the deceased, nor can we attribute knowledge to the accused that they caused the injuries with the knowledge that the injuries are likely to cause the death. Accordingly, we set aside the conviction of A-1 and A-2 under Section 302, IPC (charge No.2) and instead convict them under Section 325, read with Section 34, IPC and sentence each of them to three years' rigorous imprisonment." 21. In Ninaji Raoji and Another v. State of Maharashtra, AIR 1976 SC 1537 , the Apex Court observed as under : "There was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji, the other blows did not fall on any vital part of the body and in the absence of evidence to establish that their common intention was to cause death. it appears that the appellants had the common intention of causing grievous injury with the lathi and the 'Kunt' They could therefore be convicted of an offence under Section 325 read with Section 34, IPC and not Section 302 read with Section 34, IPC." 22. In the present case also there is no reliable evidence on the record to prove. Whether the fatal injury on the neck of the deceased was caused by Makhan or Gokula. In the present case also there is no reliable evidence on the record to prove. Whether the fatal injury on the neck of the deceased was caused by Makhan or Gokula. In the absence of evidence to establish that their common intention was to cause death, it appears that they had common intention of causing injuries which could be dangerous to life and each of them is guilty of the offence under Section 307, IPC with regard to factum of possession we have to examine the oral as well as documentary evidence adduced by the prosecution as well as by the defence. 23. According to First Information Report the occurrence took place on agriculture land 'Pattia Choka Wali' measuring 5 bighas situated in Village Milsuma. The informant Narendra Singh has alleged in the FIR (Ex. P7) that the agriculture land was possessed by his father Kishan Singh and he was the Khatedar tenant of the agriculture land. The prosecution, in support of this version has produced Hari Ram Sharma, Patwari (PW 13) who exhibited Jama Bandi of Samvat 2048 to 2051 (Ex. P9) as well as Khasra Girdawari (Ex. P10). In the cross-examination he admitted that Kishan Singh had been the Sarpanch of the Panchayat and he did not know as to how the land was entered in the name of Kishan Singh. 24. Ganga Singh Chauhan (PW 14), who investigated the matter stated in his cross-examination that the occurrence took place in the agriculture land bearing Khasra No. 1615. He further stated as under : 'YEH MALOOM HUA KI YEH RAKBA PAHLE MULJIMAN PARTY KA THA JISKO BAAD MEIN MUSTGEES PARTY NE LE LIYA'. (It was revealed that the agriculture land initially belong to the accused party which was afterwards taken by the complainant Party). He further admitted that he had knowledge about the civil suits pending between the accused and the complainant party. With regard to the crop of Bajra this witness stated as under : 'POORVI BHAG MEIN BAJRE KI FASAL KHADI HUI THI AUR PASCHIMI BHAG AADHI KHALI THA. POORVI BHAG MAIN JO BAJRA KHADA THA WEH KIS TAARIKH KO KISKE TRACTOR SE BOI GAI MAINE TAFSHISH SE MALOOM NAHI KIYA.' (On the eastern side of the field crop of Bajra was standing and western side of the field was vacant. POORVI BHAG MAIN JO BAJRA KHADA THA WEH KIS TAARIKH KO KISKE TRACTOR SE BOI GAI MAINE TAFSHISH SE MALOOM NAHI KIYA.' (On the eastern side of the field crop of Bajra was standing and western side of the field was vacant. I did not investigate as to who, as to whose tractor and on which day crop of Bajara was sown). 25. A look at the statement of appellant Ram Bharose, recorded under section 315, Cr.P.C. reveals that agriculture land bearing Khasra No. 1615 was entered in the name of Tunda Ram and after the death of Tunda Ram it was mutated in the name of Natthi, Gokula, Karan Singh and Ram Bharose (appellants). The mutation was attested by Sarpanch Kishan Singh, (the father of the deceased). Kishan Singh obtained a decree by playing fraud upon Court of Assistant Collector Bayana on 5.1.87 in Revenue Suit No. 22/81. Natthi, Gokula, Karan Singh and Ram Bharosi (appellants) had challenged the said decree by instituted a civil suit in the Court of Munsif, Bayana. Certified copy of the plaint (Ex. D 4) was placed before the Trial Court. A perusal of plaint goes to show that Kishan Singh, in collusion with the process server Jamana Lal effected forged sunrise of summons and on 5.1.87 obtained exparte decree. The appellants had no knowledge of the decree and when they came to know about it they instituted civil suit against Kishan Singh in which the Court of Munsiff, Bayana on 6.7.87 issued temporary injunction (Ex. D5) for maintaining status quo. The application of temporary injunction was sub-judice on the date of occurrence. Copy of mutation order (Ex. D8) was also placed on record which reveals that on 23.2.75 the said land was mutated in the name of Natthi, Gokula, Karan Singh and Ram Bhzirose and were shown in the possession of the said land. Kishan Singh, in the capacity of Sarpanch Gram Panchayat, attested the mutation. Jama Bandi (Ex. D9) was also placed on record in which names of Natthi, Gokula, Karan Singh and Ram Bharose have been shown as the Khatedar tenant of the said land. Kishan Singh, in the capacity of Sarpanch Gram Panchayat, attested the mutation. Jama Bandi (Ex. D9) was also placed on record in which names of Natthi, Gokula, Karan Singh and Ram Bharose have been shown as the Khatedar tenant of the said land. In order to appreciate the documents submitted by the appellants, we have to carefully examine the testimony of the prosecution witness Murari (PW 2) stated : 'MULJIMAN KHET MEIN KHADE HOKAR TRACTOR SE KHET JUTWA RAHE THE' (Accused were standing in the field and were ploughing the filed with the help of tractor) 26. Ram Saran PW 4 stated 'WAHA PER NATTHI, KARANA, GOKULA, MAKHAN, RAM BHAROSE WAGERAHA KHET KO TRACTOR SE JOT RAHE THE' (Natthi, Karana, Gokula, Makhan, Ram Bharose etc. were ploughing the field with the help of tractor) 27. Narendra Singh PW 5 stated : 'WAHA PER GOKULA, KARANA, MAKHAN, RAM BHAROSE, NATTHI. MUJMAAJ RAM RATI, FOOLAN DEI AUR LADKI MEERA SABHI HAAJIR ADALAT MULJIM YEH LOG HAMARE KHET KO TRACTOR SE JUTWA RAHE THEY' (Gokula, Karan, Makhan, Ram Bharose, Natthi, Ram Rati, Phoolan Dei and girl Meera, all the accused present in the Court, these persons were ploughing our field with the help of tractor). 28. It is evident from the statements of witnesses that appellants were ploughing the land with the help of the tractor on the date of occurrence. Tunda, the father of the appellants, was the Khatedar of the said land and after his death it was mutated by Kishan Singh as Sarpanch of Gram Panchayat in the name of the appellants. 29. It is apparent from the record that Kishan Singh took undue advantage of his position and was successful in making changes in revenue records with the help of ex-parte decree which was under challenge before the Civil Court and order to maintaining status quo was in force. 30. After careful scrutiny of the entire evidence were are satisfied that the appellants were in the possession of the land and the complainant party was the aggressor. The Trial Court had not appreciated the evidence in right perspective and committed error in holding that complainant party was in possession. The appellants therefore, cannot be held guilty for committing offences under Sections 148, 149 and 447, IPC, neither they were sharing common intention nor they were members of unlawful assembly at the relevant time. The Trial Court had not appreciated the evidence in right perspective and committed error in holding that complainant party was in possession. The appellants therefore, cannot be held guilty for committing offences under Sections 148, 149 and 447, IPC, neither they were sharing common intention nor they were members of unlawful assembly at the relevant time. Therefore, each of the accused-appellant can be held responsible for his individual act. 31. Now, we have to examine the charges under Section 323, IPC levelled against appellants, Natthi, Karan Singh and Ram Bharose. No specific act has been attributed to t:tiem in the FIR. There is a general allegation that they inflicted lathi blows on the person of the deceased. Eye witness Morari (PW 2) stated that Karan inflicted lathi blows near the ear of Shiv Ram. Another lathi blow was inflicted by Natthi on his shoulder and Ram Bharose inflicted injury on the elbow. Ram Bharose also inflicted lathi blow on both the hands of Neta. Vijay (PW 3) stated that Ram Bharose inflicted lathi blow on the right hand of Shiv Ram and he also inflict the injury on his person. Ramsaran (PW 4) stated that Natthi inflicted lathi blow on the person of Shiv Ram. Another lathi blow was inflicted by Karan near the ear of Shiv Ram and Ram Bharose inflicted lathi blow on the elbow of right hand of Shiv Ram. Ram Bharose also inflicted lathi blow on the hand of Vijay. Narendra Singh (PW 5) had made general statement that accused persons gave lathi blow on the person of Shiv Ram, who sustained injury on the shoulder and elbow. He further stated that Karan Singh and Ram Bharose inflicted lathi blows on the person of Vijay Singh. So far causing simple injuries on the person of deceased and Vijay Singh we find no reason to disbelieve these witnesses and we hold Natthi, Karan Singh and Ram Bharose guilty of committing an offence under Section 323, IPC. The upshot of the above discussion is that appellant Makhan and Gokula are guilty of committing offence under section 307 of the IPC and appellants Natthi, Karan Singh and Ram Bharose are guilty of committing of offence under section 323 of the IPC. 32. The upshot of the above discussion is that appellant Makhan and Gokula are guilty of committing offence under section 307 of the IPC and appellants Natthi, Karan Singh and Ram Bharose are guilty of committing of offence under section 323 of the IPC. 32. In the result we partly accept this appeal and set aside the judgment of Trial Court, we acquit appellant Makhan and Gokula from the charges under Sections 302,148,447 and 323 of the I.P.C. but convict each of them under section 307 of the IPC to undergo 7 years RI and a fine of Rs. 2,000/- in default to further undergo six months RI. 33. We acquit appellant Natthi, Karan Singh and Ram Bharosi from the charges under sections 302/ 149,148 and 447 of the IPC by maintaining their conviction under Section 323 of the IPC Appellants Natthi, Karan Singh and Ram Bharosi had already served sentence awarded by the Trial Court. They are on bail and they need not surrender. Their bail bonds stand discharged.Appeal partly allowed. *******