IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Dayanand & Others Vs. State of Rajasthan (D.B. CRIMINAL APPEAL No.1343/2002) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 26-9-2002 in Sessions Case No.168/2001 (190/1999) passed by Shri Anil Kumar Suroliya, RHJS, Additional Sessions Judge (Fast Track) No.1, Jhunjhunu. Date of Judgment: May 21, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Sanjay Mehla ] for the appellants. MS. Sunita Mehla ] Mr. Shashi Chaudhary] Mr. Govind Sharma ] Mr. Ashvini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) The appellants, four in number, were the accused on the file of learned Additional Sessions Judge, Fast Track, No.1, Jhunjhunu, who vide judgment dated September 26, 2002 convicted and sentenced them as under:- Dayanand, Kitabo and Daya Kaur: U/s.302 IPC: Each to suffer imprisonment for life and fine of Rs.2000/- in default to further suffer simple imprisonment for two months. Dayanand, Ishwar, Kitabo and Daya Kaur: U/s.324 IPC: Each to suffer rigorous imprisonment for three years and fine of Rs.1000/- in default to further suffer simple imprisonment for one month. U/s.323 IPC: No separate sentence has been imposed. Sentences were ordered to run concurrently. 2. The prosecution case as unfolded during trial is as under:- On June 21, 1999 informant Dalip Singh (Pw.3) submitted a written report (Ex.P-1) at Police Station Surajgarh with the averments that on the said day around 8.00 AM Mahendra, Dayanand and Kitabo committed trespass on his field and started ploughing it. Umed Singh, brother of informant Dalip Singh along with Jeeta Ram then went to the field and asked trespassers not to plough the field. Enraged by the intervention Kitabo inflicted axe blow on the head of Umed Singh. Daya Nand gave blow with Iron Jelly. Informant Dalip Singh was also beaten up by Ishwar Singh and his wife with iron Jelly. Informant sustained injuries on his left cheek and hands. Umed Singh was removed to hospital Chirawa from where he was referred to BDK hospital Jhunjhunu. On that report a case under sections 148, 447, 307 and 323 IPC was registered and investigation commenced. In the course of investigation Umed Singh succumbed to his injuries and section 302 IPC was added. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellants were arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track) No.1 Jhunjhunu. Charges under sections 148, 302/149, 324 and 323 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 17 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. One witness was examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have heard learned counsel for the appellants and learned Public Prosecutor and with their assistance scrutinised the material on record. 4. Prior to his death injuries sustained by Umed Singh were examined and vide injury report (Ex.P-17) following injuries were found- 1. Incised wound 1½ x ¼ x scalp deep on left parietal area. 2. Incised wound 6¼ x ½ x scalp deep from left fronto parietal area lateral to right parietal area 3. Stab wound 1” x ½ x 2” on left lateral side of chest. Umed Singh died on June 21, 1999 at SMS Hospital Jaipur and autopsy on the dead body was performed by Dr. Sumant Dutta (Pw.15). As per postmortem report (Ex.P-34) the cause of death was shock and hemorrhage as a result of injuries. 5. Injuries received by informant Dalip Singh were incorporated in injury report (Ex.P-23), which reads as under:- 1. Lacerated wound 4cm x 1cm x muscle deep on left cheek in vertical direction. 2. Bruise 15cm x 2cm oblique on antero lateral aspect of lt.arm above elbow. 3. Bruise 5cm x 3cm on back of Rt.arm above elbow. 6. The appellants Ishwar, Kitabo and Daya Nand also received injuries in the same incident. As per injury report Ex.D-4 swelling was found on metacarpal phalangal joint of lt. index finger of Ishwar, whereas Kitabo vide Injury report (Ex.D-5) received following injuries:- 1. Bruise 0.5 x 0.3cm lt.upper lip near midline. 2. Bruise 0.4cm x 0.1cm lt. Upper surface of nose. 3. complaint of pain on lower part of abdomen. Daya Nand also received injuries which were mentioned in injury report (Ex.D-7)as under:- 1. Bruise 11 x 2cm back of lt.chest towards shoulder. 2. Bruise 6 x 5cm upper part of left shoulder joint. 3. Bruise 6.5 x 3cm back of lt.chest outer side. 4. Bruise 3 x 2cm back of lower lt.chest 7. A close scrutiny of material on record reveals that Panna Ram is the father of appellants Daya Nand and Ishwar, whereas Kitabo is the wife of Daya Nand and Daya Kaur is the wife of Ishwar. Agricultural land which came in the share of Panna Ram was wrongly entered in the revenue record in the names of Chuna Ram and Jug Lal including their legal heirs Dalip (informant) and Umed (deceased). Panna Ram filed a suit on March 10, 1999 for correction of entries and permanent injunction in the Court of Assistant Collector Jhunjhunu on the application bearing No. 36/1999 under section 212 of the Rajasthan Tenancy Act, the Assistant Collector granted temporary injunction in favour of Panna Ram restraining Panna Ram, Daya Nand and Ishwar from interfering in the possession of Panna Ram over the said land. The complainant party despite the interim order committed criminal trespass over the land. 8. Jeeta Ram (PW.1) admitted this fact that Daya Nand and Ishwar had been in the possession of the field - "दयानÛ दऔरईँ वरनेउà मेदऔरदलीपकेखेतमɅ हलजोतरखाथा" 9. Informant Dalip (PW.3) also deposed that the accused forcibly ploughed the land belonging to him:- "मुǔã जमाननेहमारेखेतखसरानं. 219 मɅ जबरदः तीहलजोतǑदया" Dalip admitted that Panna Ram filed suit against him in the Court of ACM. Copies of suit Ex. P-4, application Ex.P-5 and affidavit Ex.P-6 got exhibited by him. He however did not explain the injuries sustained by the accused persons. 10. Ram Singh (PW.16) investigating officer admitted in his cross examination that - "घटनाः थलवालेनÈ शेमɅ खूडिनकालेहएु थे।हलचलायाहआ ु था।...... ǔजस खेतमɅ हलचलायाहआ ु थाउसमɅ ईँ वरकामकानबनाहआ ु था" 11. Fact situation emerges from the material on record may be summarized thus:- (i) Members of complainant party and the accused party were close relatives. (ii) Appellants also sustained injuries during the incident. (iii) Injuries sustained by appellants were not explained by the prosecution witnesses. (iv) Revenue suit in connection of land in dispute was pending in the Court of Assistant Collector and temporary injunction was granted in favour of Panna Ram (father of appellants Daya Nand and Ishwar). (V) Land in dispute was ploughed by Daya nand and Ishwar and near the place of incident house of Ishwar situated. (vi) Ummed (deceased) was the aggressor and he interfered with the possession of appellants. (vii) The accused party and complainant party had no previous enmity and fight was a sudden affair. 12. In Dharman v. State of Punjab (AIR 1957 SC 324) there was a dispute regarding Shamlati land existed between the parties. The accused claimed that the land was in their possession whereas the party of the deceased put forward the claim that the land had been in their possession for many years. On the date of the incident a fight ensued. The deceased died in the course of a sudden and free fight by the injury inflicted by the appellant. The deceased's party was also armed with dangerous weapons. It was held by the Supreme Court, that when two such contending parties, each armed with weapons, when clashed and in the course of free fight some injuries were inflicted on one party or the other, it could not be said that either of them acted in cruel or unusual manner and the case against the appellant clearly fell within Exception 4 to Section 300 IPC. 13. In the instant case the prosecution is able to establish beyond reasonable doubt that while Daya Nand and his minor son Mahendra were ploughing the land Umed (deceased) and Dalip obstructed them and gave beating to Daya Nand and Kitabo. Free fight then ensued and Daya Nand in retaliation inflicted injuries on the person of Umed and Dalip. Possibility of over implication of Kitabo, Daya Kaur and Ishwar cannot be ruled out in the facts and circumstances of the case. We thus grant benefit of doubt to Kitabo, Daya Kaur and Ishwar. Appellant Daya Nand in our opinion is guilty of committing culpable homicide not amounting to murder punishable under Section 304 Part II IPC. 14. For these reasons, we dispose of instant appeal in the following terms:- (i) We partly allow the appeal of Dayanand and instead of section 302 we convict him under section 304 part II IPC. Looking to the fact that Dayanand has already undergone confinement for a period of more than nine years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Dayanand, who is in jail shall be set at liberty forthwith, if he is not required to be detained in any other case. (ii) We allow the appeal of Smt.Daya Kaur, Smt.Kitabo and Ishwar Singh and acquit them of the charges under sections 302, 323 and 324 IPC. These appellants are already on bail, they need not surrender and their bail bonds stand discharged. (iii) The impugned judgment of learned trial court stands modified to the extent as indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/