JUDGMENT 1. - These two appeals arise out of common judgment of the learned Sessions Judge, Bikaner dated 1.12.1984. In the incident seven accused persons were involved, out of which one Nanak Ram was absconding, therefore, after his arrest he was separately tried, while six accused persons have been tried vide Sessions Case No. 63/83. Obviously, since Nanak was separately tried, and his case was decided by the separate judgment, appeal filed by that accused against that judgment, being Appeal No. 314/90, shall be separately decided on the basis of the material on record of that sessions case. 2. The necessary facts are, that some unknown persons gave a telephone information in the Police Station, Nokha on 29.5.1983, which was entered vide Roznamcha, being Ex.P- 43, and Aste Ali P.W. 13 went to the spot, who found victim Shera Ram in seriously injured condition. He recorded the statement of Shera Ram Ex.P-9. Injured was sent for medical assistance to Nokha Hospital, and Ex.P-9 was sent to the police station along with constable for registration of regular F.I.R., however, he stayed back on the spot. The F.I.R. is registered as Ex.P-55. On the spot Shivji Ram was found dead, his inquest report Ex.P-32, site plan and site inspection note being Ex.P-2 and Ex.P-56 were prepared, blood stained earth and control earth were taken into possession vide Ex.P-33, Jeis of the accused Chuna Ram, and Nanak were found lying broken on the spot, and wooden Jei of Shivji Ram was found blood stained, which all were taken into possession vide Ex.P-34, the foot wears of Shivji Ram and Shera Ram were also found on the spot which were taken into possession vide Ex.P-35, dead body was sent for post mortem examination, which was conducted by Dr. Motilal Mishra P.W.9, Post Mortem Report is Ex.P-43, the blood stained apparel of the deceased were seized vide Ex.P-10, one Odni of Mst. Dhuri was taken into possession from the person of the deceased vide Ex.P-36, the sealed packets were deposited in the police station. After completing further necessary investigation challan was filed in the Court of Munsiff and Judicial Magistrate, Nokha against six accused persons, being Bhera Ram, Sadula Ram, Chuna Ram, Surja Ram, Mohan Ram, and Gordhan Ram. Dhuri was taken into possession from the person of the deceased vide Ex.P-36, the sealed packets were deposited in the police station. After completing further necessary investigation challan was filed in the Court of Munsiff and Judicial Magistrate, Nokha against six accused persons, being Bhera Ram, Sadula Ram, Chuna Ram, Surja Ram, Mohan Ram, and Gordhan Ram. We may notice here, that accused Bhera Ram and Chuna Ram are real brothers being sons of Megha Ram while Surja Ram and Mohan Ram are the real brothers being the sons of accused Sadula Ram. The learned Magistrate committed the accused to the learned trial court. 3. The learned trial court framed charges for the offence under Section 302, 307, 323, 324 all read with Section 149 IPC, so also for the offences under Section 147 and 148 IPC. Obviously accused persons denied the charges. 4. During trial the prosecution examined 13 witnesses, and tendered in evidence 59 documents, while the defence did not lead any evidence. After completing the trial, the learned trial court convicted the accused persons Bhera Ram and Surja Ram for the offence under Section 302/149 IPC, and sentenced them to imprisonment for life. The other accused persons being Sadula Ram, Mohan and Gordhan were convicted for the offence under Section 304 Part-II read with Section 149 and sentenced to 5 years imprisonment, the four accused persons being Surja Ram, Bhera Ram, Mohan Ram and Gordhan Ram were also convicted for the offence under Section 148, and sentenced to six months rigorous imprisonment, Sadula Ram was convicted for the offence under Section 147 and sentenced to 3 months rigorous imprisonment, then each of the accused persons Surja Ram, Bhera Ram, Mohan, Sadula Ram and Gordhan were further convicted for the offence under Section 323 and 324/149 IPC, and were sentenced to six months rigorous imprisonment. All sentences were made to run concurrently. However, the accused Chuna Ram was acquitted. Against this judgment Appeal No. 428/84 has been filed by the five accused persons seeking to challenge their conviction and sentences as recorded by the learned trial court, while Appeal No. 106 has been filed by the State, seeking to challenge acquittal of Chuna Ram, so also challenging acquittal of Sadul Ram, Mohan, Gordhan for the offence under Section 302/149 IPC, as they had been convicted only under Section 304 Part-II read with Section 149 IPC. 5. 5. It may be noticed here, that during pendency of these appeals four accused persons Sadula Ram, Gordhan Ram, Bhera Ram and Chuna Ram have expired, with the result that the Appeal No. 106 abates against the respondent Chuna Ram, Sadula Ram and Gordhan Ram, and survives only against Mohan Ram. Likewise Appeal No. 428 also abates so far as it relates to Bhera Ram, Sadula Ram and Gordhan Ram and survives on behalf of Surja Ram, and Mohan Ram. Thus, the two appeals are required to be adjudicated only with respect to the two accused persons Surja Ram and Mohan Ram. 6. The case of the prosecution as disclosed in the statement of Shera Ram Ex.P-9 is, that his elder brother Shivji Ram had obtained Patta of land in the western side of the road in village Somalsar. Thereupon accused Bhera Ram and Sadula Ram told that they will not allow him to take Patta. Some 2-2½ months ago they erected fencing around the Pattasud land, whereupon Bhera Ram etc. were seriously annoyed. With this background it was deposed that at 10.30 in the morning on that day when the deponent, his brother Shivji Ram, and Balu Ram all the three brothers were repairing/re-erecting the fencing, the accused Bhera Ram duly armed with Barchhi, Sadula Ram armed with Lathi, sons of Sadula Ram being Mohan Ram and Surja Ram also armed with Barchhi, Gordhan armed with Barchhi and Sadula Ram's third sons Nanak Ram and Chuna Ram armed with Jei, resident of Somalsar with due preparation entered into Bara from towards south side, and started dismantling fencing, whereupon the deponent and his brothers came to the Bara, and asked them that they have obtained Patta from the Panchayat, then why they are dismantling fencing, whereupon Bhera Ram and Surja Ram exhorted to kill, whereupon all the accused persons with intention to kill started giving beating to the deponent, and Shivji Ram. Balu Ram and Mangilal who were there on the spot got frightened, and stood on the side of the road, and requested not to give beating; as a result of injury Shivji Ram fell down, and treating the two to be dead all seven persons went away from there. Shivji Ram died on the spot, and he could not get any conveyance to go to Nokha. Shivji Ram died on the spot, and he could not get any conveyance to go to Nokha. It was noticed by Aste Ali that the deponent was having injuries on the left side of the head, and was having bleeding injury on the backside, left thumb, right wrist, right palm were also injured, and which were bleeding, and there was swelling. There were couple of marks of injury on the back, there were two injuries on the right thigh, and on the right leg, left tibia was bleeding. On this report a case for the offence under Section 302, 307, 324, 323, 147, 148, and 149 IPC was registered, and investigation was commenced. 7. The prosecution has examined Shera Ram P.W.7, the injured, Mangilal and Balu Ram P.W. 2 and 11 respectively and also examined P.W. 6 Dhuri, also an eye witness, who had come on the spot, and by falling upon victim Shera Ram had saved him, and had tied her Odni on the head of Shivji Ram to prevent further bleeding, which Odni was recovered from the dead body, vide Ex.P-36, as mentioned above. The broken Jeis were seized from the spot as noticed above vide Ex.P-34. However, the two Barchhis Article Ex.P-12 and P-13 were recovered from the accused persons Surja Ram and Mohan Ram, which were sent for forensic examination, and were found, to be stained with human blood. 8. Before proceeding further we may notice, that as appears from the post mortem report Ex.P-43, the deceased Shivji Ram was having as many as nine injuries, out of which the first one was fatal one, being the incised wound 6½ x ½ inch brain deep on the head. While the injured Shera Ram had as many as 11 injuries on his person, which included one lacerated wound 6 x 1 x ½ cm. on the left side of the head 7 cm. above the left ear. He had one more injury on the head. The other injuries were of course on non-vital part of the body like scapula, legs and hands. The injury report is Ex.P-44. 9. Now before proceeding further we may straightway come to direct evidence produced, being of P.W. 2, 6, 7 and 11. Then, we may consider other evidence also, as may be necessary. 10. The other injuries were of course on non-vital part of the body like scapula, legs and hands. The injury report is Ex.P-44. 9. Now before proceeding further we may straightway come to direct evidence produced, being of P.W. 2, 6, 7 and 11. Then, we may consider other evidence also, as may be necessary. 10. We may first of all deal with the evidence of P.W.7 who is the injured witness being Shera Ram. Of course, he happens to be brother of the deceased. This P.W. 7 has stated that he along with his brother Shivji Ram and Balu had obtained land from Gram Panchayat towards the south west of the village for which three Pattas have been granted by the Pachayat for the Bara, and is in their possession for the last 8-10 years. Since 2- 2½ months ago they had erected a fencing thereon, at that time Bhera Ram and Sadula Ram told that they will not allow them to take Patta. The controversy was that they wanted to take Patta while witness stated that we wanted to take Patta. He stated that there is a Kheri situated towards north of the Bara at a distance of 2-3 paces; on the fateful day at about 9-10 in the morning the three persons were repairing the fencing (?? ?? ?? ?). At that time the seven accused persons were dismantling the northern and southern fencing. The accused persons Bhera Ram, Surja Ram, Mohan Ram and Gordhan Ram were armed with Barchhi, while Chuna Ram and Nanak Ram were armed with Jei with iron hornes. Sadula Ram was having Lathi; while they were so dismantling the fencing, Shivji Ram and the witness etc. asked them as to why they are dismantling it, and thereupon Bhera Ram and Sadula Ram exhorted, that all these should be killed. Then, Bhera Ram and Surja Ram simultaneously inflicted Barchhi blow on the head of Shivji Ram, as a result of which Shivji Ram fell down. Then, all seven persons started belabouring Shivji. When, this witness came near, and requested not to beat, they left Shivji and started beating him. Mohan Ram inflicted Barchhi blow, which landed on the left side of his head, then Chuna Ram inflicted a Jei blow on the right leg, and he fell down, then all of them started beating, whereupon Dhuri came, and lied on the witness. When, this witness came near, and requested not to beat, they left Shivji and started beating him. Mohan Ram inflicted Barchhi blow, which landed on the left side of his head, then Chuna Ram inflicted a Jei blow on the right leg, and he fell down, then all of them started beating, whereupon Dhuri came, and lied on the witness. Balu and Mangilal while standing on the right side requested not to beat, then seven persons treating them to have died, went away. After some time Shivji Ram expired. He did not go to the police station. However, after about one hour police came on the spot, and he gave report to the S.H.O., which is Ex.P-9, and signed it. Then, he has proved various articles, documents, and recoveries. On court question, as to why did he make complaint of Investigating Officer, he stated, that the I.O. had prepared the statement on his own without asking the witness, and was in collusion with the accused persons. Then, in cross-examination, good length of cross examination was directed only on the aspect of his making the said complaint. Then, he has deposed that Dhuri came on the spot, and she tied her Odni on the head of Shivji Ram, though it is not mentioned in Ex.P-9. According to him Pattas were issued some 2-3 months before the incident. Those Pattas are thereon record. The fencing existed around entire 5400 (Sq. Feet) land, which fencing was erected 10 years ago, but since it was damaged at many places it was being repaired on that day. He has denied existence of any way through that land, and deposed that no way goes to Delana Well. He has stated that he collected stones and 'Mood' in the Bara after getting Patta. Then, detailed questions were asked as to how much amount was paid for the material, in whose vehicle they were procured, and so on. Then, he was asked about sequence of infliction of injuries. Then, he was also asked about omission to mention name of father of Chuna Ram in Ex.P-9 i.e. wrong mention of father's name etc. Then, he has stated that Bhera Ram, and Surja Ram simultaneously inflicted Barchhi blow on the head of Shivji Ram, and he cannot say, whose blow hit on the head of Shivji. Then, he was also asked about omission to mention name of father of Chuna Ram in Ex.P-9 i.e. wrong mention of father's name etc. Then, he has stated that Bhera Ram, and Surja Ram simultaneously inflicted Barchhi blow on the head of Shivji Ram, and he cannot say, whose blow hit on the head of Shivji. Then, he was confronted with certain portions of Ex.P-9, and he had expressed inability to detail, as to how many injuries were inflicted from the reverse side of Barchhi, and on which part of the body of the deceased. He has also expressed inability to depose, as to how many Jei injuries were inflicted on his brother. Of course, he has maintained that in the first instance Shivji Ram was belaboured, then he was given beating. Then, he was suggested names of various persons, as the persons dismantling fencing, but he has denied that suggestion. Then, he has stated that in 1981 there were elections of Gram Panchayat, but he does not remember as to whether deceased and accused Bhera Ram were candidates from the Ward No. 1, or that in that election the deceased lost the election, and Bhera Ram won. Then, he has admitted that in December, 1981 election of Sarpanch also took place, wherein present Sarpanch Dhura Ram contested against Jag Ram, who is nephew of accused Bhera Ram, and is cultivating the land with Bhera Ram. Then, he has deposed to be knowing Satya Narain, who is Dharambhai. He has denied the suggestion of this land being sold to Satyanarain Mal. He has maintained that his brother was given beating inside the fencing, and he had fallen in the fencing itself. He has also denied the suggestion about the said land being cremation ground, or burial ground for burying the dead bodies children. He has denied the suggestion about villagers of Somalsar having given application on 21.3.1983 to S.D.M. about Satyanarain Mal obstructing way by fixing stones. He has maintained that villagers never made objection against the sale of land. He has deposed ignorance about any appeal having been filed in Panchayat Samiti Nokha. He has also denied the suggestion about the villagers having advanced good counselling to Satyanarain Mal, whereupon the later had given up the idea of raising construction over the land. He has maintained that villagers never made objection against the sale of land. He has deposed ignorance about any appeal having been filed in Panchayat Samiti Nokha. He has also denied the suggestion about the villagers having advanced good counselling to Satyanarain Mal, whereupon the later had given up the idea of raising construction over the land. He has denied the suggestion about fencing having been erected in the last night only, so also on account of enmity with Bhera Ram, Bhera Ram, his brother Sadula Ram, and Sadula Ram's three sons Surja, Mohan and Nanak having been falsely implicated. This is the entire evidence of P.W. 7. Then, P.W. 2, P.W. 6 and P.W. 11 have in all material particulars corroborated the evidence of P.W. 7, and the evidence of all the four witnesses has been discussed, dealt with and appreciated in detail by the learned trial court in para-20 of the judgment, running into more than three closely typed full scap pages. 11. The learned trial court has noticed all the criticism levelled against the evidence of each of the four witnesses, and for good reasons have negatived the criticism. 12. Then, we come to the evidence of Dhura Ram, P.W. 8 who was Sarpanch at that time since 1978. Of course, he has proved that the Collector, Bikaner vide order dated 12.1.1983 had ordered conversion of the land into Abadi, the three persons moved application for grant of Patta for which necessary proceedings were taken, and Pattas were granted. This witness has proved the various documents including application, proceeding of Panchayat, site plan, cashbook entry about depositing price of the land, and the Pattas. The Pattas have been proved to be Ex. P-16, Ex.P-20, Ex.P- 24, while the applications are Ex.P-12, 17 and 21. The order of the conversion passed by the Collector on 12.1.1983 has been proved as Ex.P-30 and P-31. He has proved that on that land neither there was any cremation ground nor there was any way. He has stated that accused Bhera Ram was Panch in the Gram Panchayat of that area, and he is Panch even now, and that accused Bhera Ram wanted to take this land. He has also proved various memos prepared by the police during investigation. He has stated that accused Bhera Ram was Panch in the Gram Panchayat of that area, and he is Panch even now, and that accused Bhera Ram wanted to take this land. He has also proved various memos prepared by the police during investigation. He has also proved and maintained that against the grant of Patta appeal was filed by accused Bhera Ram in Panchayat Samiti wherefrom interim stay was issued, being Ex.P-27, which was vacated on 1.4.83 vide order Ex.P-28. Then, a further appeal was filed by Bhera Ram before Additional Collector, Bikaner. Then, P.W. 5 Hanuman Das, is the employee, being Record Keeper in Panchayat Samiti since 1960, has proved the fact of Bhera Ram filing appeal, and passing of the stay order, dismissal of that appeal, and order having been further challenged in revision before the Collector. 13. In our view, the above evidence does establish, that the accused party, led by Bhera Ram, who happened to be Panch in the Gram Panchayat, was very much desirous of getting this land for himself, while since Patta with respect to this land was given to victim party, the accused party was nursing a grudge. It had also come, that earlier when Satyanarain wanted to erect a boundary wall, then the villagers collected, and allegedly advanced good counselling, whereupon Satyanarain gave up the idea. Two stories were projected; firstly being that the land is a cremation ground, burial ground for the children, and a way going to Delana well, and the second being the accused party was feeling strong enough to be intending to take the land, and not to allow the victim party to take the land. Thus it is clear, that there was enmity, in the sense, that the accused party was nursing grudge against the victim party. It appears that in order to cover up the situation the accused party has tried to project a picture as if the enmity was on account of elections, but then the learned trial court has rightly discussed this aspect, and has rightly found, that nothing is shown on record, to the effect, that on account of the alleged enmity on the ground of election the victim party would spare the real assailant, and falsely implicate the accused persons. In our view, if apart from the accused persons some more accused persons were arrayed, perhaps it might be thought, that while prosecuting real culprits the present accused persons have been additionally arrayed on account of enmity, but then it does not stand to our reason also, that the victim party would spare the real culprits, and falsely implant the accused persons only. 14. At this place we may have a look at the statement of the accused persons recorded under Section 313, wherein accused Surja Ram has stated, that for the last many years there is groupism, and enmity, and therefore, at the instance of Dhura Ram, Shera Ram has falsely implicated, otherwise he was not there on the spot. Similar is the stand of the accused Gordhan Ram and Chuna Ram, while Sadula Ram has claimed to be old man of 72 years, unable to walk, and claims to be ill, and that Dhura Ram belongs to opposite camp, and has been falsely implicated. Then, Mohan Ram has also stated that there is groupism in the village, and Dhura is on the other side, at whose behest Shera Ram has falsely implicated, despite the fact that he was not there on the spot. Then, Bhera Ram has stated that the land in question is a cremation ground, dead bodies of children are buried there, and there is a way leading to Delana Well, on which land there is a cremation ground, and this is the only way. Villagers of Somalsar wanted to maintain this land, while Satyanarain wanted to take possession by erecting wall, which was objected by the family members, whereupon Satyanarain agreed. None of the victim persons had any Bara on the land, nor old possession, rather it was at the behest of Satyanarain, that Shivji Ram etc. had collected fencing material, and thereupon villagers asked them to desist but when they did not agree, then in the morning villagers collected asking them not to erect the fencing. However, nobody from his family was there on the spot. Dhura Ram is his old enemy, and at his behest Shera Ram had falsely implicated them. 15. had collected fencing material, and thereupon villagers asked them to desist but when they did not agree, then in the morning villagers collected asking them not to erect the fencing. However, nobody from his family was there on the spot. Dhura Ram is his old enemy, and at his behest Shera Ram had falsely implicated them. 15. We may notice here, that this Bhera Ram no-where chooses to take the stand about his being interested to take the land, or to have challenged the grant of Patta to the three persons by carrying litigation to the higher authority in hierarchy. Obviously, this Bhera Ram is also a Panch, and it was in his presence that Pattas were granted to these persons, and significantly none of the other accused persons have stated the land in question to be either cremation ground, or a place for burial of dead bodies of the children of the villagers. 16. Likewise, it is also not shown on record, that the accused party had any legal right, title or interest on the land in question, rather as stated by Bhera Ram, the villagers felt to be powerful enough, and could successfully desist Satyanarain from erecting the boundary wall, and according to him the villagers had collected in the morning, but the victim party did not stop from erecting the fencing. 17. In our view, it is required to be grasped, that if the accused persons were feeling, that the Patta has been wrongly granted, it was required to be, and it could, be challenged before competent authority in accordance with law, and was, as a matter of fact being challenged, and if that challenge succeeded then, the law would have taken its own course to dispossess the Patta holder, but the accused persons could not be conceded any right, nor could they arrogate to themselves any right to dispossess forcibly, or even to ask the victim, better to desist from erecting fencing, much less to dismantle the fencing by taking law in their own hands. 18. 18. In this background, as is established from the evidence of P.W. 7, 6, 2 and 11, that all the accused persons duly armed with Barchhi, Jeis with iron horns, Lathis came on the spot, and straightway started dismantling fencing, and on Shivji Ram asking not to do so, Bhera Ram exhorted all the persons to kill, and attack was opened in which in the first instance Shivji Ram was killed, and then Shera Ram was seriously assaulted. From this it is obvious that the accused persons in a body armed with deadly weapon, had come on the spot and straight way started demolishing fencing, and on Shivji Ram objecting injuries were inflicted on him, which ofcourse resulted in his death. Obviously, the accused persons had not come on the spot with any pious motives, or to say prayers. It is writ large, that they had come with common object of some how or the other dispossessing the occupants, come what may. When all the seven persons did come armed with weapons including Barchhis, it cannot be said that the other persons were not aware of the intentions of the persons carrying Barchhi, more particularly when the accused persons are closely related as, as noticed above, Bhera Ram and Chuna Ram are real brothers, while Surja Ram and Mohan are the real brothers, being sons of Sadula Ram, and the third son Nanak Ram was also there. It is in this process that Mohan Ram and Surja Ram sons of Sadula Ram were also carrying Barchhis. Thus, in our view, the clear case of attracting liability of the accused persons about existence of common object to dismantle fencing, dispossess the victim party, and if necessary to cause injuries, in the event of resistance, is clearly established. 19. Then, we come to the aspect as to what offence is made out, on account of the injuries caused to Shivji Ram, resulting into his death. A look at the post mortem report Ex.P-43, read with the statement of P.W. 9 Dr. Motilal, does show, that the deceased was having an incised wound of 6½ x ½ inch depth upto brain matter, apart from having eight other injuries, but then according to the evidence of P.W. 9, it was this injury only which was individually sufficient to cause death, and except this no other injury could have caused death even collectively. Motilal, does show, that the deceased was having an incised wound of 6½ x ½ inch depth upto brain matter, apart from having eight other injuries, but then according to the evidence of P.W. 9, it was this injury only which was individually sufficient to cause death, and except this no other injury could have caused death even collectively. It is again a different story, that other injuries on Shivji Ram are on the left knee joint, left elbow joint, left ring finger, left leg, right thigh, right knee joint. Thus, it is clear that it was single blow, inflicted with Barchhi, on the head of the deceased, as a result of which he fell down, and then the other persons armed with blunt weapon, or Jei contributed their share in inflicting other simple injuries. It appears that on receiving first injury when Shivji Ram fell down, Shera Ram intervened, whereupon he was given beating, though all injuries on the person of Shera Ram are simply in nature, and caused by blunt weapon. 20. Thus, in our view, it cannot be said that death was caused by doing an act with intention to cause death, but the accused persons did know that the injuries they are causing is likely to cause death, and thus the act of the accused persons does not fall in any of the four clauses of Section 300. Obviously, with the result that the offence falls only under Section 304 Part-II IPC. 21. In our view, thus, the learned trial court was in error in holding the accused Surja Ram guilty for the offence under Section 302 read with Section 149, rather he was required to be convicted for the offence under Section 304 Part II IPC read with Section 149. Obviously, the learned Judge was correct in convicting the other accused Mohan Ram for the offence under Section 304 Part-II read with Section 149 IPC. We however do not find any ground to interfere with the other convictions and sentences recorded and imposed on the surviving accuseds. 22. The net result of the aforesaid discussion is that Appeal No. 428 is dismissed as abated, so far as accused persons Bhera Ram, Sadula Ram, and Gordhan Ram are concerned. It is dismissed so far as the accused Mohan Ram is concerned. Sentence and conviction imposed on Mohan Ram are maintained. 22. The net result of the aforesaid discussion is that Appeal No. 428 is dismissed as abated, so far as accused persons Bhera Ram, Sadula Ram, and Gordhan Ram are concerned. It is dismissed so far as the accused Mohan Ram is concerned. Sentence and conviction imposed on Mohan Ram are maintained. However, the appeal of Surja Ram is partly allowed, and his conviction for the offence under Section 302 read with Section 149 IPC is set aside, and instead he is convicted under Section 304 Part-II read with Section 149 IPC, and is sentenced to five years R.I. Other convictions and sentences imposed upon him are maintained. 23. Likewise Appeal No. 106 is dismissed as abated, so far as it relates to accused Chuna Ram, Sadula Ram, and Gordhan Ram, and is dismissed against the accused Mohan Ram. The learned trial court is directed to take steps for apprehending the accused persons Mohan Ram and Surja Ram for serving out the remaining term of sentence, if there be any.Appeal Partly allowed. *******