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2014 DIGILAW 1554 (RAJ)

Mahaveer v. State of Rajasthan

2014-09-19

RAGHUVENDRA S.RATHORE, V.K.MATHUR

body2014
JUDGMENT : V.K. MATHUR, J. This appeal filed by the accused appellants and the revision filed by the complainant arises out of the impugned judgment dated 02.05.2011 passed by the learned Additional Sessions Judge, Kekri, District Ajmer, in Sessions case No. 11/2006, and as such they are being decided by this common judgment. 2. The learned trial court had convicted all the eleven accused appellants Mahaveer, Hariram, Ramkishan, Prahlad, Laxmi Narain, Shyojiram, Jagdish, Kishanlal, Ramraj, Gokul and Nanda for the offences under Section 302/149 IPC and sentenced them for life imprisonment with a fine of Rs.5,000/-each and in default of payment of fine, to further undergo six months R.I.; for the offence under Section 447 IPC for one month R.I. and a fine of Rs. 100/- and in default of payment of fine to further undergo five days R.I.; for the offence under Section 148 IPC for two years R.I. and a fine of Rs. 1,000/- and in default of payment of fine to undergo one month R.I.; for the offence under Section 323/149 IPC for six months R.I. and a fine of Rs. 500/- and in default of payment of fine to undergo 15 days R.I. However, all the accused appellants were acquitted of the offence under Section 147 and 307/149 IPC. 3. The complainant Smt. Chhau Devi has filed revision petition against the acquittal of all the accused appellants under Section 147 and 307/149 IPC. 4. The appeal filed by the accused appellant Laxmi Narain stands abated on account of his death on 03.04.2012. 5. The brief facts of the case are that on 21.03.2006 Smt. Chhau Bai (PW-1) stated in her Parcha Bayan (Ex.P-1) that today at around 10 AM she alongwith her husband Gokul, son Pradhan, daughter-in-law Chandrakanta, elder father-in-law Ganga Ram, Sita wife of Shankar came to fill the pit of the 'Bada' in the village. On seeing them, Mahaveer son of Laxmi Narain Dhakad came and objected to them from filling the pit as the bada belonged to them and threatened to kill the complainant and her family members. Thereafter, Mahaveer, Kishanlal, Laxmi Narain, Ramkisan, Shyoji, Prahlad, Jagdish, Hariram, Ramraj, Hariram son of Jagdish alongwith 4-5 other persons armed with lathies, khuladies came and after illegally entering their bada, abused them and started beating. The accused Shyoji and Prahlad gave beating with lathies to Ganga Ram on both hands and body. Thereafter, Mahaveer, Kishanlal, Laxmi Narain, Ramkisan, Shyoji, Prahlad, Jagdish, Hariram, Ramraj, Hariram son of Jagdish alongwith 4-5 other persons armed with lathies, khuladies came and after illegally entering their bada, abused them and started beating. The accused Shyoji and Prahlad gave beating with lathies to Ganga Ram on both hands and body. All the accused persons gave beating with lathies and khuladies to Chhau Bai, Gokul, Chandrakanta, Pradhan and Sita. On their shouting, Hansraj, Ram Dayal and other people from their village came and intervened. They were taken to hospital at Kekri from where Chandrakanta and Gokul were referred to Ajmer and Ganga Ram died during the treatment at the hospital. The complainant and her family members received injuries on various parts of their body. The legs of her husband Gokul were cut by khuladi. The accused Mahaveer gave khuladi blow to Gokul on his hand, leg and head. The accused Kishanlal, Hariram, Ramraj, Shyoji, Prahlad gave beating by lathi and khuladi. Pradhan was beaten by Shyoji and Ramraj. Other accused persons gave beating to Chandrakanta. The injured Gokul had also succumbed to his injuries. 6. On the basis of the Parcha Bayan (Ex.P-1) recorded by Narad Gopal, S.I. (PW-15) at C.H.C. Kekri Hospital an FIR No.91/2006 (Ex.P-2) under Section 147, 148, 149, 447, 307 and 302 IPC was registered on 21.03.2006 at police station Kekri, District Ajmer. 7. After investigation a challan was filed against all the accused appellants for the offence under Section 147, 148, 149, 447, 307, 302 and 323 IPC in the Court of Additional Chief Judicial Magistrate, Kekri who committed the case to the Court of ADJ. 8. The learned trial court framed charges for the offence under Section 147, 148, 302/149, 307/149, 323/149 and 447/149 IPC against all the accused persons. The accused denied the charges and claimed for trial. 9. In support of its case, the prosecution had examined 32 witnesses and exhibited 79 documents. The accused appellants were examined under Section 313 Cr.P.C. wherein Mahaveer has stated that he was falsely implicated in this case and Khasra No.2079, measuring 0.03, a bada is in his possession and his family members live there. 9. In support of its case, the prosecution had examined 32 witnesses and exhibited 79 documents. The accused appellants were examined under Section 313 Cr.P.C. wherein Mahaveer has stated that he was falsely implicated in this case and Khasra No.2079, measuring 0.03, a bada is in his possession and his family members live there. When he alongwith his father and brother were nearby to the bada, he saw that Gokul, Ganga Ram, Chhau, Chandrakala, Sita and Pradhan were trying to take possession of the bada by putting bushes and digging mud from the bada with Phawda, Tagari, Gaity, Saria and khuladi. When Mahaveer tried to stop them, he was abused and those persons wanted to beat them. This false case was filed against them when they wanted to prevent the complainant from taking possession of the bada. The other accused persons have reiterated the version of accused Mahaveer. The above accused appellants have filed this appeal for setting aside the conviction and sentence awarded to them by the trial court and the complainant has filed this revision against the acquittal of all the accused appellants for the offence under Section 147 and 307/149 IPC. 10. The learned counsels for the accused appellants have submitted that the learned trial court had erred in passing the impugned judgment, as the prosecution has failed to prove its case beyond reasonable doubt. Further, it has been submitted that the accused appellants were in possession of the property in question, as per revenue record and the altercation took place in furtherance of their right of private defence to property. It has also been submitted by the accused appellants that in the facts and circumstances of the case the prosecution has failed to prove that the accused appellants had the common object to cause death of Gokul and Gangaram and there is no evidence on record that they had the intention to cause their death. Alternatively it was argued that even if in exercise of the right of private defence of property the accused had exceeded, then they can only be liable for culpable homicide not amounting to murder. 11. On the other hand, the learned Public Prosecutor has supported the impugned judgment passed by the learned trial Court. Alternatively it was argued that even if in exercise of the right of private defence of property the accused had exceeded, then they can only be liable for culpable homicide not amounting to murder. 11. On the other hand, the learned Public Prosecutor has supported the impugned judgment passed by the learned trial Court. It was submitted that the eye witnesses Smt. Chhau, Chandrakala, Sita and Pradhan have clearly stated that the accused appellants, in furtherance of the common object, had inflicted injuries on Gokul, Ganga Ram, Smt. Chhau, Chandrakala, Sita and Pradhan resulting in death of Gokul and Ganga Ram. It was also submitted that the accused appellants were not in possession of the disputed property and had no right of private defence of property. Therefore the appeal be dismissed. 12. The issues to be resolved in this matter is as to whether the accused appellants had the right of private defence of the property in question and the common object of the accused appellants was to cause death of Gokul and Gangaram. 13. The prosecution witness Dr. R.K. Mathur (PW-16) had conducted the postmortem of the deceased Gokul on 22.03.2006. The postmortem report (Ex.P-31) reveals following injuries on the body of the deceased:- 1. Incised wound on the right side of forehead 5x1 cm bone deep, clearcut margins oblique. 2. Lacerated wound the right elbow 2x1 cm bone deep. 3. Contusion in the right side of chest 9x3 cm middle 1/3 part. 4. Contusion in the right shoulder 4x2 cm. 5. Contusion in the left arm 6x4 cm. 6. Lacerated wound in the left forearm 2x1 cm bone deep # left forearm bone, lower 1/3 part. 7. Contused swelling on the left forearm near wrist # left forearm bone near wrist. 8. Contused swelling on the left hand, dorsally. 9. Contusion on the left side back 12x3 cm upper part. 10. Contusion below injury No.9, 9x3 cm. 11. Lacerated wound on the left leg 6x2 cm bone deep # left leg bone. 12. Lacerated wound on the left ankle 3x2 cm bone deep # left leg lower part bone. 13. Lacerated wound on the right leg front side middle 1/3 part. 14. Lacerated wound on the right ankle 3x1 cm bone deep. 15. Incised wound on the right great toe dorsally 2x1 cm skin deep. 16. Incised wound on the right foot dorsally 5x4 cm bone deep. 13. Lacerated wound on the right leg front side middle 1/3 part. 14. Lacerated wound on the right ankle 3x1 cm bone deep. 15. Incised wound on the right great toe dorsally 2x1 cm skin deep. 16. Incised wound on the right foot dorsally 5x4 cm bone deep. The cause of death is antemortem injury to Skull and Liver. Both the injuries are sufficient to cause death in the ordinary course of nature, collectively and individually. Injury No. 1, 15 and 16 were caused by sharp weapon. Other injuries were caused by blunt object. Duration of injuries were fresh prior to death. 14. The prosecution witness Dr. Ramavatar Swarnkar (PW-10) had conducted the postmortem of the deceased Ganga Ram on 21.03.2006. The postmortem report (Ex.P-15) reveals following injuries on the person of the deceased:- 1. Bruise 10x4 cm right hypochondrium. 2. Bruise 15x3 cm back of right thigh. 3. Bruise 10x3 cm on back of right knee. 4. Abrasion 3x2 cm back of right knee. 5. Bruise 6x5 cm back of left knee. 6. Bruise 7x8 cm on back of right knee joint. 7. Lacerated wound 1x ½ x ½ cm on left hand between little ring finger space. 8. Abrasion 4x3 cm on back of left forearm. 9. Bruise 7x3 cm on right side chest at the level of 9th & 10th right rib. 10. Lacerated wound 10x ½ cm right forearm 8.00 cm above right wrist joint. 11. Abrasion 10x1 cm on back of right wrist joint. The cause of death was shock as a result of injury to right lobe of liver. 15. The prosecution witness and complainant Smt. Chhau (PW-1) has stated in her statement that on the day of incident at 10 AM she alongwith her husband Gokul, Brother-in- law Ganga Ram, son Pradhan, Daughter-in-law Chandrakanta, Sita were present in the bada and filling the pit. At that time, the accused Mahaveer came abusing them and told to go away from the bada otherwise he would kill them. Mahaveer came again later accompanied by Laxmi Narain, Kishanlal, Ramkisan, Gokul, Shyoji, Prahlad, Jagdish, Hariram, Nanda and Ramraj, whom the complainant recognizes as they are from the same village. All the accused persons surrounded them. Shyoji and Mahaveer had khuladies and the other persons had lathies. All these persons, after beating Chandrakanta and Gokalram, started beating Gangaram. They also gave beating to her and son Pradhan. All the accused persons surrounded them. Shyoji and Mahaveer had khuladies and the other persons had lathies. All these persons, after beating Chandrakanta and Gokalram, started beating Gangaram. They also gave beating to her and son Pradhan. Her right hand wrist got injured and all the accused persons were giving beating at the same time. Ram Dayal and Hansraj intervened and thereafter all the accused persons ran away. Her husband Gokul received injuries on his right shoulder, forehead, right hand, stomach under rib and right leg was cut by a khuladi. Ganga Ram had 3-4 injuries on his chest, shoulder and back. Pradhan received injuries on his chin and shoulder. Chandrakanta received injuries on her head and ear. Sita had received injury on her back. Thereafter, they took the injured persons to Kekri Hospital where they were medically treated. Her statement was recorded by the police at the hospital (Ex.P-1) which bears her thumb impression. It has also been stated that she, Pradhan and Sita were admitted to Kekri hospital and her husband Gokul and daughter-in-law Chandrakanta were referred to Ajmer. Ganga Ram died at Kekri hospital and Gokul at Ajmer hospital. 16. Smt. Chhau Bai (PW-1) has stated in her cross-examination that at first instance the ladies were giving beating, then Pradhan gave beating. She has admitted that they do not have any documents regarding possession of the bada. There is no bada nearby and it is only a pit. At the time of incident, they had gone to fill and clean the pit and they had not taken Gaity, Phawda, Tagari etc. alongwith them. Before the incident they were putting bushes on the dolly. This witness has admitted that no person from the village had come at the seen of occurrence till the end. 17. The injured witness Chandrakala @ Chandrakanta (PW-2) has stated that on the day of incident she alongwith Ganga Ram, Gokul, Sita and Pradhan were cleaning the bada. At that time, accused persons Mahaveer accompanied by Laxmi Narain, Kishanlal, Ramkisan, Gokul, Prahlad, Shivji, Jagdish, Hariram, Nanda and Ramraj came there. The accused Shyoji and Mahaveer had khuladies and the other persons had lathies in their hands. The accused persons surrounded them and started beating. Both of her father-in-laws were given beating, as a result of which they fell down. She also received injuries on her head and waist. The accused Shyoji and Mahaveer had khuladies and the other persons had lathies in their hands. The accused persons surrounded them and started beating. Both of her father-in-laws were given beating, as a result of which they fell down. She also received injuries on her head and waist. At that time, Hansraj and Ram Dayal intervened. 18. Chandrakala @ Chandrakanta (PW-2) has stated in her cross-examination that the police did not ask her as to when the injured Gokul and Gangaram fell down on the road, as a result of injuries. Thereafter the witnesses Hansraj (PW-11) and Ram Dayal (PW-6) had come and that is why this fact was not stated by her. This witness had also not state in her police statement (Ex.D-2) that the bada belongs to their forefathers. 19. Another injured witness Sita (PW-5) has stated that on the day of incident she alongwith Gokul, Ganga Ram, Chhau, Chandrakanta and Pradhan were present. At that time, the accused Mahaveer came abusing them and said to go away from the bada otherwise he would kill them. Mahaveer, came later accompanied by Laxmi Narain, Kishan, Ramkisan, Nanda, Jagdish, Hariram, Ramraj, Gokul, Shyoji, Prahlad, Mahaveer Maali, Kanwari and Kasturi. The accused Shyoji and Mahaveer had khuladies and other persons had lathies with them. They all came and started beating. They gave beating to Gokul, Ganga Ram, Chhau, Pradhan, Chandrakanta and to him. Injured Gokul and Ganga Ram fell down. She received injury on her back. Gokul received injuries on right hand, rib and other part of the body. Gokul was beaten by khuladi and lathi by Shyoji and Mahaveer. Ganga Ram had received injuries on his chest, leg, hand, back and forehead. Chhau had received injuries on her shoulder and hand. Chandrakanta had received injury on her ear. Pradhan had received injuries on his leg and mouth. Ram Dayal and Hansraj intervened and thereafter took the injured to Kekri hospital. Ganga Ram died in Kekri hospital. Gokul was referred to Ajmer, where he died later. 20. Sita (PW-5) has stated in her cross examination that the witnesses Hansraj (PW-11) and Ram Dayal (PW-6) had come to the bada after 5-10 minutes of the incident. 21. Ram Dayal and Hansraj intervened and thereafter took the injured to Kekri hospital. Ganga Ram died in Kekri hospital. Gokul was referred to Ajmer, where he died later. 20. Sita (PW-5) has stated in her cross examination that the witnesses Hansraj (PW-11) and Ram Dayal (PW-6) had come to the bada after 5-10 minutes of the incident. 21. The prosecution witness Pradhan @ Ramavatar (PW-7)has stated that on the day of incident Mahaveer son of Laxmi Narain, Shyoji son of Gheesa alongwith other accused, armed with lathies and khuladies, came and started beating Pradhan, Ramkisan, Gokul and Ramraj. Gokul was given a khuladi blow by Mahaveer. Gokul and Ganga Ram sustained multiple injuries, as a result of which they fell down. He alongwith his mother Smt. Chhau and Sita were medically treated in Kekri Hospital. His wife Chandrakala, father Gokul were referred to Ajmer Hospital as they sustained multiple injuries. His father Gokul died on 21.03.2006 at Ajmer. 22. Pradhan @ Ramavatar (PW-7) has stated in cross examination that he does not have the documents relating to the bada and he does not know whether they had given any such documents to the police. 23. The prosecution witness Gokul Ram (PW-8), who was the Halka Patwari, has stated that on 22.03.2006 he was posted at Devgaon. The police had asked him for the record of khasra No. 2079-80 where the incident had taken place and he had submitted the report (Ex.P-6) which bears his signatures. The copy of khasra Parivartansheel is (Ex.P-7) and of Jamma Bandi (Ex.P-8). In his cross examination, this witness has specifically stated that there is no revenue record of the deceased Gokul and Gangaram with regard to the place where the incident took place. He has also stated that in his report (Ex.P-6) khasra No. 2079 has been shown in possession of Mahaveer. It has also been stated that as per the revenue record, deceased Gokul Ram and Gangaram had no land in their possession near khasra No. 2079-2080. 24. The prosecution witness Ram Dayal (PW-6) has stated that on 21.03.2006 at about 10 AM he was waiting for a bus for Devgaon, behind primary school, alongwith Hansraj Dhakad. The accused Mahaveer came abusing them and told to go away from the bada otherwise he would kill them. 24. The prosecution witness Ram Dayal (PW-6) has stated that on 21.03.2006 at about 10 AM he was waiting for a bus for Devgaon, behind primary school, alongwith Hansraj Dhakad. The accused Mahaveer came abusing them and told to go away from the bada otherwise he would kill them. Thereafter, Mahaveer, Laxmi Narain, Kishanlal, Kanwari Bai, Kasturi, Modu Mali, Ramkisan, Gokul, Prahlad, Shyoji, Jagdish, Hariram, Ramraj and Nanda came armed with lathies, khuladies and started beating Gokul, his brother Gangaram, Sita, Chandrakala, Chhau wife of Gokul and Pradhan son of Gokul. Shyoji son of Gheesa and Mahaveer son of Laxmi Narain were having khuladi in their hand and had beaten Gokul. Other accused were having lathies in their hands. Gokul had fell down due to the head injury. Mahaveer son of Modu, Laxmi Narain son of Harji, Mahaveer son of Laxmi Narain and Shyoji son of Gheesa were giving beating. Mahaveer and Laxmi Narain were given beating by lathies. Mahaveer Dhakad and Shyoji had given beating by khuladi to Gokul. Gangaram and Gokul had died. Chandrakala fell down unconscious due to injury on her ear and head. Pradhan was having injuries on his hands and legs. Gangaram was having injuries on his chest, stomach and legs. Gokul was having injuries on his hand and leg which was cut. Chhau was having fracture in her hand and Sita had sustained injury by lathi on her back. Ram Dayal and Hansraj intervened. They had taken injured to Kekri Hospital where Gangaram died. Pradhan, Chhau and Sita were admitted in Kekri Hospital. Gokul and Chandrakala were referred to Ajmer Hospital. Gokul had died in Ajmer Hospital during treatment. 25. The Prosecution witness Hansraj (PW-11) had stated that about eight months ago he alongwith Ram Dayal were waiting for a bus to Devgaon, near the primary school. Gokul, Chhau, Pradhan, Chandrakala, Sita and Gangaram were working in the bada. At that time, the accused Mahaveer came abusing them and said to go away from the bada otherwise he would kill them. Thereafter, Mahaveer came alongwith Laxmi Narain, Kishanlal, Jagdish, Hariram, Nanda, Ramraj, Gokul, Shyoji, Prahlad, Mahaveer son of Modu Mali, Kanwari, Kasturi. Mahaveer and Shyoji were having khuladies in their hands and other persons were having lathies and they started beating Gokul. The incident had occurred inside the bada, behind the primary school. Gokul was beaten by Shyoji, Mahaveer and Laxmi Narain. Mahaveer and Shyoji were having khuladies in their hands and other persons were having lathies and they started beating Gokul. The incident had occurred inside the bada, behind the primary school. Gokul was beaten by Shyoji, Mahaveer and Laxmi Narain. He was standing on the road behind primary school, when the incident took place. Gokul was having injuries all over his body. Chandrakala was having injury on her head. Gangaram was having injuries on his chest and stomach. Pradhan was having injuries on his forehead and hands. Chhau was having injuries on her hands and legs. Sita was having injury on her back. They all were taken to kekri hospital by the Van of Gokul. He alongwith Ram Dayal were present at the time of incident. Gangaram had died at kekri hospital. Chhau, Pradhan and Sita were medically treated in kekri hospital. Chandrakala and Gokul were referred to Ajmer hospital where Gokul died during treatment. The site plan (Ex.P-16) of place of incident was prepared by police in his absence. 26. In Dharam and others Vs. State of Haryana 2007 (15) SCC 241 , the Hon'ble Supreme Court held as under:- 8. Section 96 IPC provides that nothing is an offence which is done in exercise of the right of private defence. The expression "right of private defence" is not defined in the Section. The Section merely indicates that nothing is an offence which is done in the exercise of such right. Similarly Section 97 IPC recognises the right of a person not only to defend his own or another's body, it also embraces the protection of property, whether one's own or another person's against certain specified offences, namely, theft, robbery, mischief and criminal trespass. Section 99 IPC lays down exceptions to which rule of self defence is subject. Section 100 IPC provides, inter alia, that the right of private defence of the body extends, under the restrictions mentioned in Section 99 IPC, to the voluntary causing of death, if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. Section 100 IPC provides, inter alia, that the right of private defence of the body extends, under the restrictions mentioned in Section 99 IPC, to the voluntary causing of death, if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. In other words, if the person claiming the right of private defence has to face the assailant, who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant. 9. The scope of right of private defence is further explained in Sections 102 and 105 IPC, which deal with commencement and continuance of the right of private defence of body and property respectively. According to these provisions the right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt or threat, to commit offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as reasonable apprehension of the danger to the body continues (Jai Dev vs. State of Punjab 1963(3) SCR 489 ). 10. To put it pithly, the right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. Necessity must be present, real or apparent (Laxman Sahu vs. State of Orissa 1988 CriLJ 188) . 11. Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence. 12. It is trite that the burden of establishing the plea of self defence is on the accused but it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea of self defence to the hilt and may discharge the onus by showing preponderance of probabilities in favour of that plea on the basis of the material on record (Munshi Ram and Ors. vs. Delhi Administration 1968 CriLJ 806; The State of Gujarat vs. Bai Fatima and Anr. 1975 CriLJ 1079 and Salim Zia vs. State of Uttar Pradesh 1979 CriLJ 323). 13. In order to find out whether right of private defence is available or not, the injuries received by an accused, the imminence of threat to his safety, the injuries caused by the accused and circumstances whether the accused had time to have recourse to public authorities are relevant factors, yet the number of injuries is not always considered to be a safe criterion for determining who the aggressor was. It can also not be laid down as an abstract proposition of law that whenever injuries are on the body of the accused person, the presumption must necessarily be raised that the accused person had caused injuries in exercise of the right of private defence. The defence has to further establish that the injury so caused on the accused probabilise the version of the right of private defence. Non- explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution's case in all cases (Sekar alias Raja Sekharan vs. State represented by Inspector of Police, Tamil Nadu 2003 CriLJ 53 and V. Subramani and Anr. vs. State of Tamil Nadu 2005 CriLJ 1727 ). 27. It is evident from the statement of Gokul Ram (PW-8) who was the Halka Patwari that from his report (Ex.P-6) the accused Mahaveer was in possession of khasra No.2079. It has also been stated by Gokul Ram that there is no record in the name of complainant Gokul or Ganga Ram regarding the disputed land. Gokul and Ganga Ram were not in possession of any land near khasra No.2079-2080. The prosecution witness Khan Mohammad (PW-32) who is the investigating officer has also stated in his cross examination that as per revenue record khasra No.2079 was in possession of accused Mahaveer. Thus, it is abundantly clear from the prosecution witnesses that the accused appellants were in possession of the disputed land khasra No.2079 where the incident is alleged to have taken place. 28. A critical analysis of the evidence clearly shows that the statement made by the prosecution witness Smt. Chhau (PW-1) in the First Information Report (Ex.P-2) that the accused Mahaveer gave khuladi blow on the head of Gokul is corroborated by the statement of Pradhan (PW-7) who has also stated that the accused Mahaveer had given beating to Gokul with khuladi. It is also evident from the prosecution witnesses Gokul (PW-8) and Khan Mohammad (PW-32) that the accused appellants were in possession of the disputed bada and on seeing the complainant party digging mud in the bada, the accused appellant caused serious injuries to the members of the complainant party as a result of which Gokul and Ganga Ram died. It is also evident from the prosecution witnesses Gokul (PW-8) and Khan Mohammad (PW-32) that the accused appellants were in possession of the disputed bada and on seeing the complainant party digging mud in the bada, the accused appellant caused serious injuries to the members of the complainant party as a result of which Gokul and Ganga Ram died. It can therefore, be inferred that the accused Mahaveer had the right of private defence of property as they were in possession of the bada. However, the appellant Mahaveer was responsible for causing the fatal injury to Gokul. It can thus be said that the accused have exceeded the right of private defence. 29. In these circumstances, it cannot be inferred that the accused appellants had formed an unlawful assembly with the object to commit murder of Gokul and Ganga Ram. After analysing the evidence of the prosecution witnesses, as above, it is amply clear that only accused Mahaveer had caused the fatal injury on the skull of Gokul, resulting in his death. 30. In view of the above discussion and in the facts and circumstances of the present case, it is clear that the prosecution has failed to prove that the appellants Mahaveer, Hariram, Ramkishan, Prahlad, Shyojiram, Jagdish, Kishanlal, Ramraj, Gokul and Nanda were members of unlawful assembly whose object was to cause death of Gokul and Ganga Ram. The eye witnesses have attributed the overt act to accused Mahaveer only who had caused death of Gokul by giving khuladi blow on the skull. The prosecution has further failed to attribute any specific overt act to the other accused appellants. The mere fact that the other accused were armed with lathies would not be sufficient to prove the common object. 31. As Section 149 IPC creates specific offence and deals with punishment of that offence, in order to convict a person or persons with the aid of it, a clear evidence regarding the object of the assembly must be available and it must show, not only the nature of the common object but also that it was unlawful. In the present case, we are satisfied that the ingredients of the offence have not been fulfilled or established by the prosecution. 32. In the present case, we are satisfied that the ingredients of the offence have not been fulfilled or established by the prosecution. 32. Thus, the prosecution has not been able to prove its case beyond reasonable doubt that the accused appellants were members of unlawful assembly whose object was to cause death of Gokul and Ganga Ram. 33. Taking into consideration the evidence of Halka Patwari Gokul (PW-8) that the accused Mahaveer was in possession of the disputed land, as per revenue record and the fact that the accused Mahaveer in the exercise of his right of private defence of property had given a khuladi blow on the head of Gokul resulting in his death, it cannot be inferred that the accused Mahaveer had the intention to cause the death of Gokul. The accused appellant Mahaveer had in the heat of passion, while exercising his right of private defence of property, had inflicted a khuladi blow on the head of Gokul which in the facts and circumstances of the incident was not with the intention to cause the death of the deceased Gokul. The prosecution has not brought any material on record that the accused Mahaveer was vindictive, or had any malicious intention to cause the death of Gokul. 34. In view of the factual scenario of the present case and looking to the sequence in which the incident occurred, it can be inferred that the accused appellant Mahaveer had exceeded his right of private defence. That being so, in our opinion, it would be appropriate to hold accused Mahaveer guilty of an offence of culpable homicide not amounting to murder and Mahaveer is liable to be punished under Section 304 Part-I IPC. The accused Mahaveer is sentenced to the period already undergone by him. 35. It is evident from the prosecution witnesses Smt. Chhau (PW-1), Chandrakala @ Chandrakanta (PW-2), Sita (PW5) and Pradhan @ Ramavatar (PW-7) that the accused appellants Hariram, Ramkishan, Prahlad, Shyojiram, Jagdish, Kishanlal, Ramraj, Gokul and Nanda had inflicted simple injuries by lathies on Smt. Chhau, Gokul and Gangaram. In these circumstances, the accused appellants Hariram, Ramkishan, Prahlad, Shyojiram, Jagdish, Kishanlal, Ramraj, Gokul and Nanda are liable to be punished under Section 323 IPC and sentenced for the period already undergone by them. 36. In these circumstances, the accused appellants Hariram, Ramkishan, Prahlad, Shyojiram, Jagdish, Kishanlal, Ramraj, Gokul and Nanda are liable to be punished under Section 323 IPC and sentenced for the period already undergone by them. 36. In view of the aforesaid facts and circumstances of the case as well as the evidence on record, we are of the considered opinion that the prosecution has failed to prove its case against the accused-appellants for the offence under Section 302/149 IPC, 447 IPC and 148 IPC. However, the accused Mahaveer is convicted for the offence under Section 304 Part-I IPC and sentenced to the period already undergone and the other accused appellants Hariram, Ramkishan, Prahlad, Shyojiram, Jagdish, Kishanlal, Ramraj, Gokul and Nanda for the offence under Section 323 IPC and sentenced for the period already undergone by them. The impugned judgment dated 02.05.2011 passed by the learned Additional Sessions Judge, Kekri, District Ajmer in Sessions case No. 11/2006 against the accused appellants is modified as aforementioned. 37. Consequently, the appeal is partly allowed. The conviction and sentence awarded to the accused appellants is modified, as mentioned here-in-above. The accused appellant Mahaveer son of Shri Laxmi Narain is in jail and he shall be released forthwith, if not required in any other case. The accused appellant Laxmi Narain son of Shri Harji has expired and as such the appeal as against him stands abated. The accused appellants Hariram son of Shri Jagdish, Ramkishan son of Shri Ramnath, Prahlad son of Shri Gheesa, Shyojiram son of Shri Gheesa, Jagdish son of Shri Nathu, Kishanlal son of Shri Laxmi Narain, Ramraj son of Shri Jagdish, Gokul son of Shri Gheesa and Nanda son of Shri Jagdish are on bail and they need not surrender. Their bail bonds stand discharged. The revision petition (878/2011) filed by the complainant is dismissed.