-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CRIMINAL APPEAL NO.311/1987 (Bhagwandas & Ors. Vs. State of Rajasthan) S.B. CRIMINAL APPEAL UNDER SECTION 374 (2) Cr.P.C. AGAINST THE JUDGMENT DATED 19.8.87 PASSED BY THE LEARNED ADDITIONAL SESSIONS JUDGE NO.2, HANUMANGARH, CAMP SURATGARH IN SESSIONS CASE NO.20/84. DATE OF JUDGMENT : 01st February, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Sanjeev Sharma for the appellants. Mr. S.N.Tiwari, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment dated 19.8.87 passed by the learned Additional Sessions Judge No.2, Hanumangarh, Camp Suratgarh in Sessions Case No.20/84, whereby, he convicted accused appellant Bhagwandas for -2- offence under Section 326 IPC and sentenced him for two and a half years' rigorous imprisonment and to pay a fine of Rs.200/-, in default of payment of fine to further undergo one month's rigorous imprisonment. Accused appellants Gyan and Jangiram were convicted for offence under Section 324 IPC and were sentenced for two years' rigorous imprisonment. 2. Facts leading to this appeal are that on 28.5.83, at about 7.30 pm, one Hardev Singh lodged a FIR at Police Station Suratgarh that he along with his brother Harpal Singh were going to their field from the camel cart, when they reached near the field of Jangi Ram, Jangi Ram, Satnam, Laxman, Bhagwana, Gyani and Deshraj stopped them. Bhagwana inflicted gandasi blow, whereby, he received injury on the right thumb, which was cut, whereby, he felt down. Upon this, accused appellants inflicted gandasi and axe blows. Harpal Singh also inflicted injuries. Gyani Ram and Bhagwan fired on them. 3. Upon this, police registered a case for offence under Sections 148, 147, 341, 323/149, 324, 307/149 and 326 IPC and after investigation, challan was filed against the accused appellants. Accused appellants were charged for offence under Sections 148, 147, 341, 323/149, 324, 307/149 and 326 IPC, to which they pleaded not guilty. Prosecution examined five -3- witnesses. Statements of the accused appellants were recorded under Section 313 Cr.P.C. They produced two witnesses in defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as indicated above, against which this appeal has been filed. Co-accused persons namely Satnam Singh and Laxman were acquitted from all the charges by the learned trial court. 4. I have heard learned counsel for the accused appellants and the learned Public Prosecutor. 5. It has been brought to the notice of this Court that persons who said to have been received injuries were also fired on the accused appellants and a cross case was registered against them, in which, the learned Additional Sessions Judge No.2, Hanumangarh, Camp Suratgarh by his judgment dated 19.8.87, convicted accused Mohan Singh, Hardeo Singh and Harpal Singh. Accused Harpal Singh was convicted for offence under Section 307 IPC and was sentenced to four years' rigorous imprisonment and to pay a fine of Rs.200, in default of payment of fine to further undergo one month's rigorous imprisonment, under Section 342 IPC with three month's rigorous imprisonment and under Section 27 Arms Act with two years' rigorous imprisonment and to pay a fine of Rs.200, in default of payment -4- of fine to further undergo one month's rigorous imprisonment. Accused Mohan Singh was convicted for offence under Section 307 IPC and was sentenced to four years' rigorous imprisonment and to pay a fine of Rs.200, in default of payment of fine to further under go one month's rigorous imprisonment, under Section 342 IPC with three month's rigorous imprisonment and under Section 325 IPC with two years' & three months' rigorous imprisonment and to pay a fine of Rs.200, in default of payment of fine to further undergo one month's rigorous imprisonment. Accused Hardeo Singh was convicted for offence under Section 324 IPC and was sentenced to two years' rigorous imprisonment and under Section 342 IPC with three months' rigorous imprisonment. These accused persons preferred an appeal against the judgment of conviction dated 19.8.87 passed by the learned Additional Sessions Judge No.2, Hanumangarh, Camp Suratgarh in Sessions Case No.55/83 and their appeal was decided by this Court on 22.02.2002 being S.B.Criminal Appeal No.280/1987, whereby, all the accused were acquitted for offence under Section 307 IPC but their conviction for offence under Sections 342, 324, 325 IPC and 27 Arms Act was maintained and they were sentenced to the period already undergone. The ground of acquittal for offence under Section 307 IPC was, that it was a case of free fight. This finding of free fight was also recorded by the learned trial Judge and was -5- confirmed by this Court. This free fight was of the same incident, for which, the present accused appellants were convicted. 6. Learned counsel for the accused appellants submits that inadvertently, the present appeal could not be tagged with the appeal (S.B.Criminal Appeal No.280/1987), decided by this Court on 22.2.02. Learned counsel further submits that the present accused appellants were not the assailants as they were not convicted for offence under Section 307 IPC by the learned trial Judge but only accused appellant Bhagwan Das was convicted for offence under Section 326 IPC and rest of the accused appellants were convicted for offence under Sections 324 IPC, therefore, they should also be awarded the same sentence that is, the sentence to the period already undergone, which the learned Judge of this Court has awarded to the accused persons in the aforesaid criminal appeal filed by the complainant party. Learned counsel for the accused appellants further submits that the incident is of 20 years back. I find force in the contention of the learned counsel for the accused appellants in view of the fact that the trial court itself disbelieved the theory of unlawful assembly and considered both the cross cases of free fight. 7. Consequently, this appeal is partly allowed. While maintaining the conviction of accused appellant - Bhagwandas -6- S/o Jangiram under Section 326 IPC and of accused appellants - Gyan S/o Jangiram and Jangiram S/o Subaram under Section 324 IPC, their sentence is reduced to the period already undergone. However, the fine imposed shall be deposited before the learned trial court within a period of one month from today. (DEO NARAYAN THANVI), J. ms rathore