Kanwaljit Singh Ahluwalia, JVillage Kemla falls within the jurisdiction of Patwar Mandal Neemkheda. In village Kemla Kotari over Khasra No. 8/4 having area of 10 bighas, there was a dispute for possession between the appellant Harimohan, on one side and Gopal Lal the deceased and his brother Bhanwar Lal, residents of village Lakheri being another side. As per revenue record, the said land was jointly owned by Nand Lal, Gopal Lal the deceased, Bhanwar Lal their father Anda, Pushpa Bai widow of Ramchandra and Sugna and Manju Bai, daughters of Ramchandra. Sometime before the occurrence, appellant Harimohan was induced as tenant and later proceedings to disposs him were initiated. The only question germane in this case is whether actual physical possession of the land was taken back from the appellant Harimohan or not

2. The prosecution has relied upon report of possession record (Exhibit-P/32) dated 30.11.2002 prepared under the orders of Tehsildar, Nainwa, District Bundi, to say that in the absence of the appellant Harimohan, the possession of the said land was delivered to the complainant party, whereas accused in defence has asserted that Exhibit-P/32 is a sham. It was prepared in the office and actual physical possession was never handed over to the complainant party. It was further case of the defence that the appellant Harimohan was never dispossessed and he continued to remain in the possession of the land. On 27.3.2003, at 5:00-6:00 PM, in village Kemla Kotari, the occurrence had ensued resulting into death of Gopal Lal, who was caused injury by the appellant Harimohan on the head, when both the parties asserted their possession over the disputed field.

3. The appellant Harimohan was tried along with Hariprasad and Dhanraj @ Dhanna. The court of Additional Sessions Judge, Bundi vide impugned judgment dated 11.8.2006 doubted the presence of Hariprasad and Dhanraj @ Dhanna at the spot and acquitted them by granting benefit of doubt. No appeal has been filed by the State of Rajasthan against their acquittal. The trial Judge vide impugned judgment dated 11.8.2006 held the appellant guilty of offence under Sections 302 and 447 IPC and having convicted the appellant for the aforesaid offences, vide a separate order of even date sentenced him as under:-

"U/s 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo six months S.I.

U/s 447 IPC- to undergo one month S.I."

4. The case of the prosecution is unfolded in the statement (Exhibit-P/1) of Ram Swaroop (P.W.1) recorded by ASI, Narain Singh (P.W.24). The statement (Exhibit-P/1) when translated into English reads as under:-

"It is stated that my father Gopal Lal was having four brothers. The name of eldest brother is Nand Lal, then Ramchandra, then father Gopal Lal and youngest brother was Bhanwar Lal. Out of four brothers, Nand Lal and Ramchandra had died. My father etc have ten bighas of land in the revenue estate of Kemla Kotari. The said land was under our cultivation and possession. Three years before Harimohan and his family members had taken possession of the land. A case to this effect was instituted by us in the court of Nainwa at Bundi. The said case was decided in our favour and four months before, government had handed over the possession of the land to us. On 27.3.2003, to cultivate our land we came from our village Lakheri. I and my father Gopal Lal, Shyam Lal S/o. Nand lal Raiger, Deenanath S/o. Nand Lal Raiger and my mother Mangi Bai on our motorcycle came to our field at Kemla. We came at about 5:00-6:00 PM. At that time, Harimohan son of Mathura Lal Mali, his younger brother and his cultivator, and two/three other persons came armed with sticks and gandasi with common intention to cause murder. They trespassed into our field and on arrival, Harimohan gave a gandasi blow on the head of my father Gopal Lal due to which he fell on the ground. I came forward to intervene. His brother caused me injury with stick. The said injury landed at my hand from which blood oozed out. Then Harimohan gave a gandasi blow on my head. I fell on the ground. While I was lying fallen on the ground, others caused me injuries with sticks and gandasi. The said occurrence was also witnessed by Shyam Deenanath and Mangi Bai. I have suffered injuries on my left side of hand, wrist of right hand and both the feet. We brought our father Gopal Lal to hospital at Indragarh from where he was referred to Kota, where my father Gopal Lal succumbed to injury received. The above said persons keeping grudge over the land dispute, with intention to cause murder had given beating with lethal weapons. Due to beating caused, my father has died and I have suffered serious injuries.

Sd/- Ramswaroop."

5. From perusal of the above statement, on the basis of which formal FIR bearing No. 148/03 was registered at Police Station Dei, District Bundi, it is apparent that on the day of occurrence, the complainant party had come on the motorcycles to cultivate the land and Harimohan, his brother and others who were present along with him, objected and Harimohan caused an injury on the head of the deceased Gopal Lal.

6. Before we determine the issue regarding possession and take note of the evidence to this effect led by the parties, we shall first notice the medical evidence and the eyewitnesses account.

7. Dr. Rakesh Sharma (P.W.11) on 28.3.2003, at about 9:40 AM, had conducted autopsy on the dead body of Gopal Lal, aged 60 years. In the Post Mortem Report (Exhibit-P/11), he had noted one lacerated wound having dimension of 5 x 1cm, bone deep on the left parietal region, placed obliquely. Except above solitary injury, no other injury was found on the person of deceased Gopal Lal. However, during internal examination, subscalp haematoma, diffused in nature was found. This witness (P.W.11) has also found fracture of left side of parietal bone. This witness also found subdural haematoma below the left parietal region. Brain and membranes were found congested. As per opinion of the doctor, the cause of death was due to Coma as a result of ante mortem head injury.

8. Dr. Dhirendra Saxena (P.W.6) on 28.3.2003 while posted as Medical Officer at 8:45 AM, in Government Hospital, Indragarh, had examined Deenanath S/o. Nand Lal and as per injury report (Exhibit-P/7) had found following two injuries on his person:

"(i) Abrasion, redish, 3 x 1.5cm, at back below left scapular, simple, blunt.

(ii) Abrasion, redish, 3 x 1cm, at right forearm, simple, blunt."

9. A perusal of the injury report (Exhibit-P/7) reveals that Deenanath had suffered two abrasions one on left scapular region and another on right forearm.

10. Dr. Govind Gupta (P.W.9) on 28.3.2003 had medico-legally examined Ramswaroop (P.W.1) son of Gopal Lal deceased. In the injury report (Exhibit-P/8), doctor had noted following injuries on his person:

11. Injury Nos. 3 and 6 on the person of Ramswaroop (P.W.1) were declared grievous.

12. The prosecution in all had examined twenty-eight witnesses.

13. Ramswaroop (P.W.1) and Deenanath (P.W.2) are injured eyewitnesses. Lokesh (P.W.3) another eyewitness has turned hostile to the prosecution case. Mangi Bai (P.W.5) wife of Nand Lal and bhabhi of deceased Gopal Lal has also appeared in the court as eyewitness along with Suraj Mal (P.W.7) and Shyam Lal (P.W.13) relations of the deceased. Independent eyewitnesses Modu Lal (P.W.14), Prem Shankar (P.W.15), Ramji Lal (P.W.17), Hanuman (P.W.18) and Prem Shankar (P.W.19), cited by the prosecution have turned hostile and have not supported the prosecution case. Prabhu Lal (P.W.20) another independent eyewitness had supported the case of the prosecution. Remaining witnesses had participated in the investigation. They are witnesses to the recoveries of clothes of the deceased and recovery of weapons or had attested the inquest proceedings. Therefore, we need not refer their testimony as nothing hinges upon their deposition.

14. The present case revolves around the possession of the field and the eyewitnesses account. Before taking into account the evidence regarding possession, we shall notice the evidence emerging in the deposition of the eyewitnesses.

15. Ramswaroop (P.W.1), an injured eyewitness stated in the court that his father Gopal Lal was having three brothers, namely Nand Lal, Ramchandra and Bhanwar Lal. Nand Lal and Ramchandra had died. They had about ten bighas of joint agricultural land in village Kemla. They had instituted a suit regarding the land at Nainwa and Bundi. The cases instituted at both the places were decided in their favour. Three or four months before the occurrence, Tehsildar Nainwa had handed over the possession of the land to them. On 27.3.2003, this witness along with his father Gopal Lal, Shyam Lal, Deenanath, Mangi Bai and Lokendra on motorcycle had gone from village Lakheri to Kemla. They were about to cultivate their land when they heard noise and saw that Harimohan along with two other persons was coming towards them and Harimohan on arrival had caused sticks and gandasi blow on the head of his father, due to which his father became unconscious. The witness further identified Hari Prasad and Dhanraj as the persons who had accompanied the appellant Harimohan. The said persons were armed with lathis. In the occurrence this witness was also caused injuries. To similar effect is the statement made by Deenanath (P.W.2) another injured eyewitness. This witness (P.W.2) also stated that three/four months before the occurrence, Tehsildar had handed over the possession of the land to them. This witness further stated that four/five years ago, the land on the basis of sharing half produce was handed over to the accused Harimohan. This witness admitted to be correct that land is having boundary of stones.

16. Lokesh (P.W.3) stated that he cannot remember whether Hariprasad and Dhanraj had accompanied the appellant Harimohan or not. This witness stated that in all six persons had come and the appellant had caused injury on the head of Gopal Lal due to which he fell on the ground.

17. Mangi Bai (P.W.5) stated in the court that they have instituted a case at Nainwa. The said case was decided in their favour. Thereafter, Harimohan the appellant had challenged the said decision at Bundi. The case instituted at Bundi was also decided in favour of the complainant party. This witness further stated that on the day of occurrence, at 5:00 PM, they had gone to cultivate the land. When they reached, Harimohan had given exhortation that they be caused injuries.

18. Suraj Mal (P.W.7) and Shyam Lal (P.W.13) had also reiterated as to what was stated by other witnesses.

19. Modu Lal (P.W.14) stated that he had witnessed the occurrence from his field. Four persons were causing injuries to Gopal Lal. He cannot say as to which accused caused which injury to Gopal Lal.

20. Prem Shankar (P.W.15) had also not supported the prosecution case and was declared hostile to the prosecution. This witness stated that he had seen Gopal Lal many years ago and Ramji Lal had not told him about the occurrence.

21. Ramji Lal (P.W.17) stated that he had seen Harimohan, Om Prakash, Hari Prasad in the field of deceased. This witness stated that he had not seen Gopal Lal the deceased at the place of occurrence. This witness was also declared hostile to the prosecution.

22. Hanuman (P.W.18) another eyewitness had feigned ignorance regarding the occurrence.

23. Prem Shankar (P.W.19) in the court stated that he learnt about the occurrence on the next day. This witness was also declared hostile to the prosecution case.

24. Thus, the eyewitnesses who are relations of the deceased deposed that on the day of occurrence, they came at about 5:00-6:00 PM on motorcycle from their village Lakheri to Kemla village to cultivate the land, the possession of which was handed over to them three/four months ago. In support of this contention, the prosecution has relied upon the document Exhibit-P/32, the possession report prepared on 30.11.2002. The possession report when translated into English read as under:

"Possession Report

Date: 30.11.02

Subject: Nand Lal v. Harimohan 1831RTA1/./01

Today on 30.11.2002 under the orders of Tehsildar Nainwa bearing No. 3040//02 dated 31.10.02, I accompanied by Patwari Halka Neemkheda, ILR Jetpur, had reached at village Kotadi at Khasra No. 8/4 having 10 bighas area. As per revenue record, joint owners of above khasra namely Nand Lal, Gopal, Bhanwar Lal, by caste Raiger, residents of Lakheri were present at the spot. After demarcation, possession of Khasra No. 8/4 was handed over to them. Respondent Harimohan S/o. Mathura Mali, resident of Kemla, was not present at the spot. After handing over the possession to the present khatedars, their signatures were obtained. Necessary action was taken.

Sd/- Nandlal, Gopal, Ramswaroop, Gopal Meena, Mohan Lal. Damodar Lal Patwari"

25. Damodar Lal (P.W.25) in the court stated that he was posted as Patwari at Patwar Mandal Neemkheda. Under the orders of Deputy Superintendent, he had gone at the place of occurrence and had prepared site plan (Exhibit-P/2) and as per revenue record and Jamabandi, the said field was owned by Nand Lal, Gopal Lal Bhanwar Lal, their father Anda and Puspha Bai widow of Ramchandra and Sugana, Manju Bai daughters of Ramchandra. In cross-examination this witness admitted that actual physical possession of the disputed land was with the accused Harimohan. It will be apposite here to reproduce the following portion of the cross-examination :-

26. Thus, between the report (Exhibit-P/32) and cross-examination of Damodar Lal (P.W.25), who had prepared the report (Exhibit-P/32) there is inherent contradictions. It is apparent that even though the complainant had won the litigation, the physical possession was not transferred to them even though report (Exhibit-P/32) was prepared showing symbolic transfer of the possession of the disputed land to the complainant party.

27. Though in the report (Exhibit-P/32), it is recorded that after demarcation the possession of the land has been handed over to the complainant party, it is to be noted that the report (Exhibit-P/32) was prepared in absence of the appellant, who was to be dispossessed, however, Damodar Patwari (P.W.25) author of the possession report (Exhibit-P/32) in court in cross-examination in court has stated in the categoric terms that an enquiry was held and actual physical possession of the land remained with appellant Harimohan.

28. Be that as it may, it is difficult for us to reconcile report (Exhibit-P/32) prepared by Damodar Lal (P.W.25) and admission made by him in favour of the accused in cross-examination. We have already reproduced above the relevant portion of cross-examination of Damodar Lal Patwari (P.W.25) and possession report (Exhibit-P/32).

29. Thus, it is apparent that after the round of litigation, had gone in the favour of the complainant party, both the complainant and the accused party were asserting possession over the land i.e. the disputed field. The complainant party was relying on the report (Exhibit-P/32) to claim their possession and whereas accused were asserting their physical possession over the land. Thus, on 27.3.2003, at 5:00-6:00 PM, due to assertion of possession over the disputed field by both the parties, matter had flaired up and the appellant had caused only a solitary blow on the head of the deceased Gopal Lal. In the Post Mortem Report only one injury has been found on the head of the deceased. The witnesses have also stated in the court that only one injury with gandasi was caused by the accused on the person of deceased and when the deceased had fallen on the ground, no injury was caused. The very fact that the appellant had not repeated the blow so far the deceased is concerned and the occurrence had taken place on the arrival of the complainant party in the field over which accused were claiming their possession, make it evident that the occurrence had taken place without any pre-mediation.

30. In these circumstances, we are of the view that the offence if any will not fall under Section 302 IPC but under Section 304-I IPC. Thus, we convert the offence from Section 302 IPC to Section 304-I IPC.

31. Consequently, we set aside the conviction of the appellant Harimohan for the offence under Section 302 IPC and convict him for the offence under Section 304-I IPC. As a result thereof, we set aside the life imprisonment awarded upon the appellant and sentence him to undergo ten years R.I and to pay a fine of Rs. 10,000/-, in default of payment of fine to further undergo one year R.I.

32. With the above modification, qua conviction and sentence the present appeal stands disposed of.