1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Jodh Singh & others Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.908/2003 against the judgment dt.8.8.03 passed by Addl.Sessions Judge (FT), Chittorgarh, in Sessions Case No.20/2003. Date of Judgment: Nov.17, 2008 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.M.K.Garg ) Mr.Niranjan Singh) for appellants. Mr.J.P.S.Choudhary, Public Prosecutor. BY THE COURT : (PER HON'BLE THANVI J.) 1. This appeal by five accused appellants is arising out of the judgment of learned Additional 2 Sessions Judge (Fast Track), Chittorgarh, dated 8.8.2003, whereby he convicted & sentenced each of the accused appellants as under: ACCUSED APPELLANTS JODH SINGH, CHHOTU SINGH AND BAHADUR SINGH: U/S.302/149 IPC: Life imprisonment alongwith a fine of Rs.3000/- & in default, to further undergo one month's S.I. U/S.148 IPC : Two years' S.I. alongwith a fine of Rs.1000/- & in default, to further undergo 15 days' S.I. U/S.323/149 IPC: Six months' S.I. alongwith a fine of Rs.200/- & in default, to further undergo 7 days' S.I. ACCUSED APPELLANTS SAMPAT SINGH AND BHANWAR SINGH: U/S.302IPC : Life imprisonment alongwith a fine of Rs.3000/- & in default, to further undergo one month's S.I. U/S.148 IPC : Two years' S.I. alongwith a fine of Rs.1000/- & in default, to further undergo 15 days' S.I. U/S.323/149 IPC: Six months' S.I. alongwith a fine of 3 Rs.200/- & in default, to further undergo 7 days' S.I. 2. Facts leading to this appeal are that on 29.9.02, injured Bheru Das made an oral report before the S.H.O., Police Station, Bijaypur that he alongwith other villagers assembled at temple at the instance of Bhanwar Singh, Sarpanch, with regard to cutting of grass of the forest. He and his party told to the Sarpanch that they will cut the grass, whereas Bhanwar Singh told that they will graze the animals. Upon this, accused Jodh Singh, Bhanwar Singh, Sampat Singh, Chhotu Singh, Bahadur Singh, Pappu Singh and their ladies started fighting and gave abuses. Then they left for their houses. Accused appellants followed them and Sampat Singh gave sword blow on his sister Ratni, Bhanwar Singh gave axe blow on the right eye of his sister, Jodh Singh made an empty fire and rest of the people and ladies threw stones in which he alongwith Raju, Govind and Kailash received injuries. They also blocked their way, 4 when they were going towards Chittorgarh. Ratni was admitted to the hospital, where she died. Upon this report, the police registered a case and commenced investigation. After investigation, all the accused appellants were chargesheeted for the offences u/ss.147, 148, 149, 341, 323 & 302 IPC. The case was committed to the court of Sessions. After hearing the arguments on charge, accused were charged for the offences u/ss.147, 148, 341, 323, 323/149 and 302 or in alternative 302 read with 149 IPC, to which they pleaded not guilty. During trial, accused Pappu Singh moved an application alongwith his date of birth certificate. His application was allowed and his case was sent for trial before the juvenile Court. The prosecution examined 22 witnesses. The statements of the accused were recorded u/s.313 CrPC. They produced one Narayan Singh as DW 1 in their defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. 5 3. It has been contended by the learned counsel for the appellants that the incident has taken place on a trifle issue of cutting the grass and there was no motive or intention of the accused appellants to kill Ratni. He has further submitted that the meeting was called by the Sarpanch and there was no question of forming the unlawful assembly. Whatever injuries have been received the injured are the effect of throwing stones by unknown persons in which the allegations are against the ladies as well but the ladies have not been chargesheeted by the police. According to him, the specific role of killing Ratni has been assigned on accused Sampat Singh and Bhanwar Singh but as per the post mortem report, there is only single injury, whereby death has been caused. The author of this injury is said to be accused Sampat Singh. According to him, it is a case of sudden fighting and at the most, the case does not fall beyond the scope of Section 304 part II IPC against the accused Sampat Singh alone. 6 4. Per contra, learned Public Prosecutor has supported the judgment of the trial Court. 5. We have heard learned counsel for the parties and have also re-appreciated the evidence brought on record. 6. The principal witness, who is the author of F.I.R., Ex.P.8, is Bheru Das (PW 8). In his statement, he has stated that he blamed Jodh Singh and his family members about disconnection of his light on 14.9.02 and since then, they started fighting with him. On the same day, Bhanwar Singh and Nathu Singh called a meeting about cutting grass at the temple, where all the villagers had assembled. He was also present there and suggested that neither the grass should be cut nor the animals should be allowed to graze. Accused Jodh Singh came there and started abusing him. Accused Sampat Singh and Bhanwar Singh gave beating to him. The villagers intervened. When he went towards his 7 house, all the accused appellants followed him and after five minutes, accused Sampat Singh with sword, accused Bhanwar Singh with axe, accused Jodh Singh with gun and rest of the accused with lathis came there and entered into his house. When his sister Ratni Bai came out of the house, accused Sampat Singh and Bhanwar Singh caught hold of her and took her out by dragging. Accused Sampat Singh inflicted sword blow on her head and accused Bhanwar Singh gave axe blow on her eye and rest of the accused threw stones. Accused Jodh Singh made empty gun fire. Raju, Govind, Shambhu, Kailash and he himself also received injuries. When he was cross examined, he expressed inability as to why the police had not written about dragging Ratni by accused Sampat Singh & Bhanwar Singh in her statement Ex.D.4. Though injured Raju PW 1, Kailash PW 2, Govind Das PW 4 & Shambhu PW 10, have supported the evidence of Bheru Das, PW 8 and have specifically stated that they also received injuries and are family members of Bheru Das. 8 7. If the evidence of these witnesses is read in the light of the independent witness Chunnilal, PW 21, it is clear that a meeting was held at the instance of Bhanwar Singh (Sarpanch), PW 13, at the temple, where all the villagers assembled and the fighting took place on the issue of cutting grass and grazing animals. At the initial stage, accused Sampat Singh and Bhanwar Singh slapped Bheru Das and thereafter all the accused left. According to him, accused Sampat Singh was having sword, Bhanwar Singh was having kulhari and Chhotu Singh & Bahadur Singh and rest 4-5 were having lathis in their hands. Both the parties started fighting. Ratni intervened because accused were beating `Sadhus' (Vaishnavs viz; Bheru Das, Raju, Kailash, Govind etc.). Accused Sampat Singh inflicted sword blow on the head of Ratni, Bhanwar Singh said to have inflicted axe blow from back side and Jodh Singh etc. threw stones. Because of this incident, Ratni died. During cross examination, he has stated that the fighting took place on the way and 9 outside the house of Bheru Das while coming from the temple. The evidence of this independent eye witness Chunnilal, PW 21 coupled with the testimony of Bheru Das, PW 8 and Bhanwar Singh (Sarpanch), PW 13, who called the meeting and who has been declared hostile, it is established that there was no unlawful assembly prior to killing of Ratni, as the incident took place on the issue of cutting grass and grazing animals, at a meeting organized by Bhanwar Singh, Sarpanch at the temple, where all the villagers assembled and after dispersing from the temple, the fight started between the accused and the injured party outside the house of Bheru Das and when Ratni intervened, sword blow was inflicted by the accused appellant Sampat Singh resulting in her death. 8. From the post mortem report, Ex.P.17, the cause of death is coma due to injury on the vital organ i.e. brain. This injury is an incised wound measuring 2 1/4” x 1/3” x bone deep resulting in fracture of both frontal 10 bones. According to Dr.Kamal Bhargava, PW 14, this injury was sufficient in the ordinary course of nature to cause death. The post mortem report and the evidence of the eye witnesses clearly spells out this fact that Ratni died on account of sword blow given by accused Sampat Singh after the meeting was over on the issue of cutting grass and the fighting took place between the parties. The allegation that accused Bhanwar Singh dragged Ratni Bai from the house, is not established from the contradictory testimony of witnesses. Though the recovery has been effected of the sword, axe as well as lathis but there is no axe injury on the person of Ratni. Even if the axe would have been used from the back side, there should have been some injury but in the absence thereof, it cannot be believed that accused Bhanwar Singh acted by sharing common object or common intention with accused Sampat Singh to kill Ratni Bai. The totality of this evidence leads to only irresistible conclusion that it was only accused Sampat Singh by whose sword blow, Ratni Bai 11 was killed. Therefore, in our view, the finding of the trial Court in convicting of the accused appellants with the aid of Section 149 IPC cannot be affirmed, except that accused Sampat Singh was the author of inflicting sword on the person of Ratni Bai, who came to intervene when fighting took place. 9. The next question for consideration is as to whether this act of the accused falls under the definition of culpable homicide amounting to murder or not? Our answer is that looking to the nature of the injury and the circumstances under which fight took place, this is the act of culpable homicide but the way in which this single injury has been inflicted, when Ratni came to intervene, it is a case which definitely falls under the Exception 4 of Section 300 IPC, which says that culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in 12 a cruel or unusual manner and is punishable under Section 304 part I IPC. 10. So far as rest of the accused appellants are concerned, when the unlawful assembly has not been found to have been proved and the common intention of accused Bhanwar Singh, who is alleged to have given axe blow from its back side on the person of Ratni Bai, has not been established, rest of the accused cannot be held liable under Section 149 IPC but they are liable for their individual act punishable under Section 323 IPC because of inflicting injuries on the persons of injured Bheru Das vide Ex.P.9, injured Govind vide Ex.P.5 & Kailash vide Ex.P.24, whose injuries are simple in nature and caused by blunt weapon. However, as per the injury report of Shambhu Das, Ex.P.15, he had simple pain in right shoulder. 11. The contention of the learned counsel for the appellants that the accused party also received injuries 13 vide Ex.D.7 of Jodh Singh, Ex.D.8 of Bhanwar Singh, Ex.D.9 of Sampat Singh and Ex.D.10 of Chhotu Singh, therefore, in a free fight case, they should be acquitted, is devoid of force because the law does not permit that in a free fight case, one is permitted to take the life of a person and to inflict the injuries. In our view, from the totality of the facts & circumstances of the case, the act of accused Sampat Singh falls under Section 304 part I IPC and act of rest of the accused is confined to Section 323 IPC. 12. Consequently, we allow this appeal in part and acquit all the accused appellants of the offences u/ss.148 and 149 IPC recorded by the learned Addl.Sessions Judge (FT), Chittorgarh vide his judgment dt.8.8.03. However, they are convicted & sentenced as under: i) The conviction of accused Sampat Singh for the offence u/s.302 IPC is altered to Section 304 part I IPC 14 and he is sentenced to seven years' R.I. alongwith a fine of Rs.3000/- & in default, to further undergo six months' R.I. However, he is acquitted of the offence u/s.323/149 IPC. ii) Accused Bhanwar Singh is acquitted of the offences u/ss.302 and 323/149 IPC but he is convicted for the offence u/s.323 IPC and sentenced to the period already undergone alongwith a fine of Rs.1000/- each and in default, to further undergo one month's S.I. iii) Accused appellants Jodh Singh, Chhotu Singh and Bahadur Singh are acquitted of the offences u/ss.302/149 & 323/149 IPC but they are convicted for the offence u/s.323 IPC and sentenced to the period already undergone alongwith a fine of Rs.1000/- each and in default, to further undergo one month's S.I. iv) Accused Sampat Singh is in jail, he will serve out the remaining part of the sentence awarded. Rest of 15 the four accused appellants are on bail. They shall deposit the fine within a period of one month from today, else they will undergo the sentence, awarded in default of payment of fine. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS