IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Durga Lal & Others Vs. State of Rajasthan (D.B. Criminal Appeal No.882/2004) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 02-8-2004 in Sessions Case No.12/2004 passed by Shri Surendra Kumar Jain, RHJS, Additional Sessions Judge (Fast Track) No.1, Jhalawar. Date of Judgment: September 16, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. PRS Rajawat, for the appellants. Mr. Ashvini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) The appellants, six in number, saw their life reflected in the Magic-Mirror of Law while they were put to trial before learned Additional Sessions Judge (Fast Track) No.1 Jhalawar for having committed murder of Birdhi Lal, learned Judge vide judgment dated August 2, 2004 convicted and sentenced them as under:- Durga Lal s/o Jeewan Lal, Bheru Lal s/o Bhanwar Lal, Durga Lal s/o Dev Karan, Ramesh s/o Jeewan Lal, Dev Lal s/o Jeewan Lal and Suraj Mal s/o chunni Lal : U/s.302/149 IPC: Each to suffer imprisonment for life and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for three months. U/s.148 IPC: Each to suffer rigorous imprisonment for two years. U/s.323/149 IPC: Each to suffer rigorous imprisonment for six months. U/s.324/149 IPC: Each to suffer rigorous imprisonment for two years. The substantive sentences were ordered to run concurrently. 2. It is the prosecution case that on October 23, 2002 at 11 AM Police Station Jhalrapatan recorded Parcha Bayan (Ex.P-1) of Lal Chand (Pw.1), who was admitted to Government Hospital in an injured condition. In the Parcha Bayan Lal Chand stated that on the preceding day his bullock cart was taken away by Durga Lal without his permission and because of this hot words were exchanged between them. On the said day around 9 AM when his brother Birdhi Lal (since deceased) was returning from the field and informant was proceeding to village Nimoda, Jiwan Lal, Dev Lal, Durga Lal s/o Jiwan Lal, Ramesh s/o Jiwan Lal, Suraj Mal, Chunni Lal, Bhanwar Lal, Bheru Lal, Ramesh s/o Bhanwar Lal, Naru and Durga Lal s/o Dev Karan belaboured them and gave beating to them with Gandasi and Pipes. Informant and his two brothers sustained injuries. They were removed to the hospital, but Birdhi Lal died on the way. On that parcha bayan case under sections 147, 148, 149, 302, 307 and 323 IPC was registered and investigation commenced. After completion of investigation charge sheet was filed. In due course the case came up for trial before the court of learned Additional Sessions Judge (Fast Track) No.1 Jhalawar. Charges under sections 147, 148, 302, 302/149, 323, 323/149, 324 and 324/149 IPC were framed. The appellants denied the charges and claimed trial. The prosecution in support of its case examined as many as 23 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. One witness in support defence was examined. Learned trial Judge on hearing final submissions, while acquitting four co-accused persons, convicted and sentenced the appellants as indicated herein above. 3. Death of Birdhi Lal was undeniably homicidal in nature. As per post mortem report (Ex.P-34) following ante mortem injuries were found on the dead body:- 1. Incised wound Left side occipital temporal region head 5 x 3 x 4 cm tailing posteriorly extending into brain tissue having cut underlying bone covered with effused clotted blood. 2. Incised wound left side head 13 x 4 x 5cm extending from frontal region to occipital region just above left ear cutting brain tissue having cut underlying bone of skull tailing posteriorly covered with effused clotted blood. Cause of death of deceased according to Autopsy Surgeon Dr.Ashok Sharma (Pw.20) was coma due to injuries on head extending into brain matter due to sharp weapon. 4. We have given our anxious consideration to the rival submissions. 5. The prosecution case rests on the evidence of Lal Chand (Pw.1) and Dev Chand (Pw.2), who sustained injuries during the incident. In their deposition they repeated the contents incorporated in Parcha Bayan (Ex.P-1). In their cross examination, they however admitted that appellant Suraj Mal sustained injuries during the incident, but the said injuries were not caused by the complainant party. 6. At this juncture it will be appropriate to consider the injuries received by appellants. Appellant Suraj Mal vide injury report (Ex.D-5) received following injuries:- 1. Lacerated wound 5 x 1/8 x 1/8cm left side of middle of scalp. 2. Contusion 6 x 2.5 lower part of middle of back. 3.Swelling 4 x 3cm middle of scalp. As per X-Ray report (Ex.D-4) fracture of frontal bone was detected. 7. Appellant Ramesh vide injury report (Ex.D- 6) received following injuries:- 1. Lacerated wound 6 x 1/8 x 1/8cm middle of scalp. 2. Abrasion ½ x ½ cm right hand. 3. Contusion 2 x 1cm right hand. 4. Swelling 4 x 3cm middle of scalp. 8. It also appears that cross FIR bearing No.343/2002 was registered against the members of complainant party on the basis of Parcha Bayan of appellant Suraj Mal. The members of complainant party were charge sheeted for having committed offences under sections 341 and 307/34 IPC. 9. A look at site plan (Ex.D-11) shows that the incident occurred at place “A” which is near the field of Jiwan Lal (father of appellant Durga Lal). 10. Appellant Suraj Mal, who appeared in the witness box as Dw.1, deposed that when he was taking his goats for grazing he saw Birdhi Lal abusing Jiwan Lal, when he tried to intervene Birdhi Lal and Dev Chand gave beating to him. 11. Salient features of the case may be summarised thus:- (i) The incident occurred near the field of Jiwan Lal (father of appellant Durga Lal). (ii) There was no previous enmity and the incident occurred all of a sudden on a trivial matter. Members of complainant party and accused party fought freely. (iii) Injury on the head of deceased has been attributed to appellants Durga Lal and Bheru Lal. (iv) Appellant Suraj Mal sustained fracture over frontal bone whereas appellant Ramesh received lacerated wound over middle of scalp. (v) The complainant party was charge sheeted for having caused injuries to Suraj Mal and Ramesh. 12. Analysing the evidence adduced at the trial we find that the members of the complainant party came to the field of Jiwan Lal and demanded explanation as to why bullock cart was taken by Durga Lal without their permission. In the heat of passion lathi blow was inflicted by one of the members of the complainant party on the head of Suraj Mal, who fell down and became unconscious. This resulted in free fight between the complainant and accused party. In the course of free fight Birdhi Lal received injuries caused by appellant Durga Lal s/o Jiwan Lal and Bheru Lal s/o Bhanwar Lal and he died at the spot. 13. Analysing the evidence in the background set out above, the inevitable conclusion is that conviction of Durga Lal and Bheru Lal has to be altered from Section 302 to part I of Section 304 IPC. 14. That takes us to the allegations against other appellants, who have been convicted with the aid of Section 149 IPC. It would be worth while to consider the principles governing constructive liability under section 149 IPC. This section requires the consensus of five persons to do an unlawful act prohibited by section 141, in addition to which, in order to create a liability under this section, there must be proof that the accused knew that the offence committed by one member of the assembly was likely to be committed by any of them. Section 149 does not create new offence but deals with vicarious liability of the members of unlawful assembly. In Munir Khan Vs. State of U.P. (AIR 1971 SC 355) it was held that where there is a mutual fight between the parties, the court will not be justified in convicting any of the accused by having recourse to section 149. In a mutual fight there is no common object. 15. It is well settled that where there is a spontaneous fight between the parties, the question of constructive liability under section 149 IPC does not arise and each individual is responsible for the injuries caused by him. 16. In the instant case since there was mutual fight between the parties, it will not be justified in convicting any of the appellants by having recourse of section 149 IPC and only appellants Durga Lal and Bheru Lal are responsible for the injuries caused by them. 17. For these reasons, we dispose of instant appeal in the following terms:- (i) We allow the appeal of Durga Lal s/o Dev Karan, Ramesh s/o Jiwan Lal, Dev Lal s/o Jiwan Lal and Suraj Mal s/o chunni Lal and acquit them of the charges under sections 148, 302/149, 323/149 and 324/149 IPC. These appellants are on bail, they need not surrender and their bail bonds stand discharged. (ii) we partly allow the appeal of Durga Lal s/o Jiwan Lal and Bheru Lal s/o Bhanwar Lal and instead of section 302 IPC we convict each of them under section 304 part I IPC and sentence them to suffer rigorous imprisonment for ten years and fine of Rs.2000/-, in default to further suffer six months rigorous imprisonment. We however acquit them of the charges under sections 148, 323/149 and 324/149 IPC. (iii) The impugned judgment of the learned trial court stands modified as indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/