1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Mithu Shah & ors. Vs. State of Rajasthan D.B.CRIMINAL APPEAL NO.672/2002 against the judgment dt.8.8.2002 passed by the Addl.Sessions Judge (FT),Jalore, in Sessions Case No.95/01(72/94). Date of Judgment: 12 th May, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.H.S.S.Kharlia ) Mr.Pradeep Shah ) for the appellants. Mr.S.S.Sharma, Public Prosecutor. BY THE COURT : (PER THANVI J.) 1. This Criminal Appeal under Section 374 of the Code of Criminal Procedure has been filed against the judgment of the learned Addl.Sessions Judge (FT), Jalore in Sessions Case No.95/2001(72/1994) arising out of FIR No.51/94, Police Station Bagoda, Distt.Jalore, whereby he convicted & sentenced the 18 accused appellants as under: 2 U/S.148 IPC All the accused appellants sentenced to two years' R.I. with a fine of Rs.500/- each & in default, to further undergo six months' R.I. U/S.302 IPC Accused appellant Gulab Shah sentenced to life imprisonment with a fine of Rs.2000/- & in default to further undergo two years' R.I. U/S.302/149IPC Except accused Gulab Shah, rest of the accused sentenced to life imprisonment with a fine of Rs.2000/- each & in default to further undergo two years' R.I. U/S.307 IPC Accused Peer Mohd.Shah sentenced to four years' R.I. with a fine of Rs.1000/- & in default to further undergo one year's R.I. U/S.307/149IPC Except accused Peer Mohd.Shah, rest of the accused sentenced to four years' R.I. with a fine of Rs.1000/- each & in default, to further undergo one year's R.I. U/S.326/149IPC All the accused sentenced to four years' R.I. with a fine of Rs.1000/- each & in default, to further undergo one year's R.I. U/S.324/149IPC All the accused sentenced to two years' R.I. with a fine of Rs.500/- each & in default, to further undergo six months' R.I. U/S.323/149IPC All the accused sentenced to one year's R.I. with a fine of Rs.250/- each & in default, to further undergo three months' R.I. All the substantive sentences were ordered to run 3 concurrently. 2. During the pendency of this appeal, learned counsel for the appellants submitted a certificate with regard to death of accused Hanja Ram on 6.1.09. Learned Public Prosecutor was asked to verify the same. During the course of arguments, learned Public Prosecutor submitted that accused Hanja Ram has expired and he does not question the death certificate issued by the Registrar, Birth & Death, Gram Panchayat Rah, Panchayat Samiti, Bhinmal issued on 20.1.09. Accordingly, the proceedings against accused Hanja Ram stand abated. 3. Facts leading to this appeal are that on 26.8.94, Aalam Khan s/o Jumme Khan by caste Musalman resident of Rah, submitted a written report dt.25.8.94 at Police Station, Bhinmal that when he alongwith Samde Khan S/o Hazi Khan, Murad Khan, Latif, Gulam, Samde Khan s/o Gaji, Tayab Khan and Mehar Khan were grazing their cattle in the `Oran' of village, then at about 5 PM, Sanwla Bheel came there and stopped them to graze the cattle, as the land being of Jagirdars. He told that the Jagir System is over and now since the 4 land belongs to the Government, they cannot be stopped. Upon this, accused Sanwla left the spot by threatening that he would teach a lesson. Thereafter, about half an hour, all the 18 accused appellants came there in four tractors with deadly weapons. Accused Gulab Shah was having `Dharia', Nizam Shah was having `Kulhari', Saheb Shah was having `Pharsi', Peer Mohd. with his licensed pistol and sword, Noora with `Dharia', Ali Khan with `Kulhari' and rest of the accused were armed with lathis. Accused appellants Sanwla Bheel, Saddique, Khinwra and Iqbal Shah were driving the tractors. They exhorted and started beating to them. Accused Gulab Shah inflicted injury on Samde Khan S/o Hazi Khan with `Dharia' whereby he died. Accused Noora inflicted injury on Murad, whereby two of his fingers were cut. Accused Ali inflicted injury on the hand of Mehar Khan and accused Peer Mohd. fired with pistol on Aalam, which was missed & pistol was thrown out from his hand by Aalam with lathi. Thereafter, the accused persons moved tractors over Tayab Khan, Samde Khan and Aalam Khan and caused injuries to them on hands and legs. On hearing hue and cry, Meeru Khan, Mele Khan, Jumme Khan, Murad Khan etc. came on the spot and rescued them, else all the accused 5 wound have killed them. The incident was relating to the Police Station, Bagoda, therefore, the incharge, police station, Bhinmal, sent the report with FC Chandan Singh to Police Station, Bagoda, where the case u/ss.147, 148, 149, 302, 307 and 323 IPC was registered and investigation was commenced. The injured were medically examined. The post mortem of deceased Samde Khan was conducted. During the course of investigation, all the accused were arrested and on their informations, the recoveries of weapons used in the crime, were made. After investigation, all the accused appellants were chargesheeted in the Court of learned Judicial Magistrate, who committed the case to the Court of Sessions. The chargesheet was filed against 13 accused appellants. Accused Gulab Shah was charged u/ss.148, 302, 307/149, 326/149, 324/149 & 323 IPC. Accused Peer Mohd. was charged u/ss.148, 302/149, 307, 326/149, 324 & 323 IPC. Accused Nizam Shah was charged u/ss.148, 302/149, 307/149, 326, 326/149, 324/149 & 323 IPC. Similarly, accused Noora was charged u/ss.148, 302/149, 307/149, 326/149, 324 & 323 IPC and rest of the accused viz; Mithu Shah, Ali Khan, Peeru Khan, Saheb Shah, Ghewaria, Sanwalia, Khamish Shah, Mehre Khan and Khinwra were charged 6 under sections 148, 302/149, 307/149, 326/149, 324/149 and 323 IPC, to which they pleaded not guilty and claimed trial. After examination of Aalam Khan, PW 1, the prosecution moved an application u/s.319 CrPC which was allowed and cognizance was taken against five more accused viz; Iqbal Shah, Saddique, Gigu Shah, Veera Ram and Hanja Ram. They were charged u/ss.148, 326/149, 323, 302/149, 307/149, 326/149 and 324/149. Thereafter, Aalam Khan was further examined as PW 16. The prosecution examined 24 witnesses including the double statement of Aalam Khan. The statements of the accused were recorded u/s.313 CrPC. They produced Dr.M.L.Paniya and Nizam Shah, DW 1 and DW 2 respectively, in their defence. Seventy seven documents were exhibited from the side of the prosecution and 22 documents from the side of the defence. After hearing the arguments, the learned trial Judge convicted & sentenced the accused appellants as above. 4. We have heard the arguments of Mr.H.S.S.Kharlia and Mr.Pradeep Shah, learned counsel for the appellants and Mr.S.S.Sharma, learned Public Prosecutor. 7 5. While assailing the judgment of the learned trial Judge, it has been submitted by the learned counsel for the appellants that it is a case of free fight, where double motive has been assigned, one of obstructing the way by accused Gulab Shah and the other of grazing the cattle in the `Oran' of Jagir. According to the learned counsel, the statements of the injured witnesses are self contradictory and full of improvements and further it is not established as to which accused caused injuries on which injured witness. He has further submitted that the most important feature of the case is about this very fight, a cross FIR was also lodged being No.50/94 at Police Station, Bagoda u/ss.307, 323, 147, 148 & 149 IPC by appellant Nizam Shah against the complainant party in which the police after investigation filed challan against 18 persons of the complainant party u/ss.307, 326, 325, 324, 341, 323 read with 149 and 148 IPC, wherein the learned Addl.Sessions Judge (FT), Jalore, tried and acquitted them on the ground that the aggressor party was the accused appellants of the present case vide judgment dt.8.8.2002 in Sessions Case No.90/2001. Learned counsel for the appellants has submitted that 8 in this case the original FIR has been suppressed which was lodged by Sarpanch Ismail, who has not been produced in the court. 6. According to the learned counsel, six persons from the side of the accused party also received injuries and they were on the vital parts, whereby the left ear pinna of one of the accused Peer Mohd. was completely cut. Though the appeal against acquittal has been dismissed but in such a case where free fight takes place, it is unsafe to bring home the guilt of the accused, unless the convincing explanation is given by the prosecution as to who inflicted injury and under what circumstances. In support of their contentions, the learned counsel for the appellants have placed reliance on some of the authorities, which will be referred later on. 7. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Judge. 8. At the outset, so far as the contention of learned counsel for the appellants with regard to suppression of original FIR is concerned, it can be said that it is devoid 9 of force because the fact of obtaining thumb impression of Ismail on the FIR has been stated in the cross examination by Aalam Khan PW1 but in examination-in- chief, he has stated that the Ex.P.1 is the report which he gave at the Police Station on the preceding night and he has admitted this report to be true over which the thumb impression has been marked, which he further corroborated in his statement as PW16. Who drafted this report and obtained his signatures either Ismail Sarpanch or someone else is immaterial and merely on this basis, it cannot be said that the prosecution has withheld the initial report. 9. Upon re-appreciation of evidence and the judgment of the learned trial Judge dt.8.8.2002 in the Cross case of the same incident, it is found that 18 accused persons of the complainant party were acquitted holding that the accused in the said case (who are complainant party in the present case) inflicted injuries in their right of private defence, therefore, they cannot be held liable particularly when the death has been caused of a person viz; Samde Khan S/o Hazi Khan from the side of the complainant party. Learned trial Judge also held the accused appellants of the present case as aggressors. 10 In such a situation, it is undisputed that it is a case of free fight from both the sides. When the facts so emerges that it leads to free fight, then the Court has to scrutinize the evidence that as to under what circumstances, the crime has been committed and what was the common object of the assembly. The prosecution has brought out two motives with regard to formation of unlawful assembly and its object, one is as stated in the FIR Ex.P.1 about grazing of the cattle in the `Oran' of Village Rah. In the FIR Ex.P.1, it is stated that when the complainant party went to graze their cattle, which were 200 – 250 in number, in the evening, the accused appellant Sanwla Bheel came and stopped them and after half an hour, the accused party came in the four tractors with deadly weapons. The second motive, which has been assigned is about the right of way, as stated by Aalam Khan, PW 1 in his examination in chief, wherein he has stated that there is a common way from the field of Gulab Shan and Gulab Shah stopped that way, therefore, the accused were having enmity with them. Though the defence has come out with a version that when the complainant party was going from the way, accused Gulab Shah stopped them and fight took place. In the site plan, Ex.P.45, `x' point 11 is the place where the incident is said to have taken place and `x-1' is the place where the deceased received injuries. The `x' place is the central place of way to four villages going towards different directions and injury has been inflicted upon deceased at place `x-1', which is the way going towards village Dhumbadia and the `gochar' land has been shown in both the sides of the way going towards village Dhumbadia, where the cattle were said to have been grazing. There might be a dispute about the way but when the `gochar' land was existing on both the sides of the way, the possibility of prosecution story cannot be said to be unnatural that the cattle were stopped from grazing over the said land. In the site plan, Ex.P.45 and site note, Ex.P.44, one tractor of Gulab Shah being without number, is shown to be lying at point `x-3' which is also on the way leading to Dhumbadia and on the `gochar' land surrounded by multiple trees and bushes, though there is no specific mark about the field of accused Gulab Shah. Therefore, the argument of the defence that the incident took place on account of right of way, is devoid of force. It is established from the evidence that both parties were armed with deadly weapons and fight took place, 12 wherein, as per the injury reports, seven persons were injured from the side of the complainant party viz; Aalam Khan vide Ex.P.26, Murad Khan vide Ex.P.22, Latif vide Ex.P.27, Tayab Khan vide Ex.P.25, Samda Khan s/o Mangeen Khan vide Ex.P.24, Mehardin vide Ex.P.28 and Gulam vide Ex.P.23. The injuries of Murad Khan, PW 2 and Mehardin, PW 6 were grievous in nature, caused by sharp edged weapon and rest of the injuries on other injured witnesses were simple in nature and caused by blunt weapons, except that of Latif, PW 3 and Gulam, PW 4, whose two injuries were caused by sharp edged weapon. On the other hand, appellant Gulab Shah received four injuries including swelling on left hand, which was grievous in nature caused by blunt object and one injury on the occipital region by sharp edged weapon vide Ex.D.19. Accused Peer Mohd. also received four injuries vide Ex.D.23 and one grievous injury on the left ear, pinna was completely cut, caused by sharp weapon and rest were simple caused by blunt weapon. Accused Ali Khan was examined vide Ex.D.18, accused Nizam Shah vide Ex.D.20 and Peeru Khan vide Ex.D.21. The injuries of these accused appellants were simple in nature, caused by blunt object, whereas one of the injuries of accused 13 Saheb Shah was grievous in nature and rest were simple caused by blunt object. 10. In a case, where the 7 persons from the complainant side and six persons from the accused side received grievous and simple injuries with sharp and blunt objects and one of the persons died from the side of the complainant party viz; Samde Khan s/o Hazi Khan, it can safely be said that it is a case of open and free fight on the issue of grazing cattle. Both the parties were chargesheeted by the police and number of accused persons were 18 in both sides, who were tried. Though, 18 persons of the complainant party, who said to have inflicted injuries on the accused appellants, have been held to be not guilty by the learned trial Judge in Sessions Case No.90/01 as referred-to above, being not aggressors by holding the accused appellants as aggressors, who have been convicted of the offences as referred-to above with the aid of Section 149 IPC i.e. formation of common object. Section 148 IPC is made punishable for rioting armed with deadly weapons and Section 149 IPC makes every member of that unlawful assembly guilty of offence in prosecution of common object. This principle of common object is based on the 14 doctrine of constructive criminal liability and the basis of such liability is the membership of the assembly with a definite object. It may be formed at any stage by all or few members of the assembly and the others may just adopt it. Though, there is no strict formula to gather the common object but it may be collected from the nature of the assembly, arms used in it and conduct of the accused. To determine the common object, normal rule is that if a group of persons inflicted multiple injuries, it can be said that each member had joined it and adopted the course, as adopted by the main assailant but when large number of persons assemble either for the purpose of obstructing the right of way or for possession or use of the land for grazing cattle or taking water from the tank etc., then normally, it is very difficult to infer as to whether they had a common object to commit the crime. The law of constructive liability de-recognizes the guilt of the accused when the fight took place between the two parties, where both parties get grievous injuries and any member of either of the parties dies. In this regard, the Hon'ble Supreme Court in Bachan Singh vs. State of Punjab reported in 1993 SCC(Cri) 688 has observed in para 6 as under: 15 “6. xxx A survey of the evidence leaves an impression that there was a free fight between these two groups namely the prosecution party and the accused party, in which both the parties sustained injuries. It is the settled law that in a free fight each accused will be liable for the individual act attributed to the particular accused.” 11. The Jaipur Bench of this Court in Narayan Singh vs. State of Rajasthan reported in 2007(3) WLC (Raj.) 518 held that in a case of free fight, where both parties were armed with sharp edged weapon, the conviction cannot be recorded u/s.302 IPC. In the cited case, the following four situations were emerged as laid down in para 10 of the judgment resulting in alteration of conviction: “(i) Cross case under Section 327 IPC was registered against the members of the complainant party. (ii) Grievous injury caused by sharp edged weapon to Narain Singh was not explained by the prosecution. (iii) FIR lodged by Rai Singh (PW 3) at the police station was withheld by the prosecution and Parcha Bayan appears to have been recorded after examination of the injuries sustained by the deceased. (iv) Free fight ensued between the parties.” 16 12. On re-appraisal of the facts & circumstances of the present case, it appears to us that the complainant party in this case went for grazing the cattle, which were 200 – 250 in number, upon the `Oran' land, which the accused party objected on the pretext of the same being Jagir land and on being stopped by one of the accused viz; Sanwalia Bheel, accused appellants came there and started fighting. The learned trial Judge has held the accused appellants as aggressors in the cross case but the investigating officer Labhu Ram, PW 24 in the present case has clearly stated in the cross examination that only one tractor was on the spot which was recovered and it was found to be wrong that the accused came in four tractors. He further stated that out of the two parties of which cross cases were registered, he cannot say as to who were the aggressors. Even, he has further stated that he cannot say as to whether the complainant party was the aggressor or the accused party was the aggressor. The story of the prosecution that the accused persons came in four tractors has also been falsified by the investigating officer, who recovered only one tractor from the site. These factors lead to the conclusion that the accused appellants did not come with a common 17 design to kill deceased Samde Khan and to inflict injuries on other persons but assembled on the issue of grazing cattle and during hot exchange of words, scuffle took place with deadly weapons. 13. The summary of the above discussion leads to the following situations: (i) The dispute emerged between the two groups on the issue of grazing cattle upon the `Oran' land of Village Rah; (ii) The previous enmity with regard to right of way, closed by accused Gulab Shah, whose tractor was lying on the spot without number plate, was existing; (iii) Receiving of multiple injuries by 6 persons of the accused party including one injury with sharp weapon cutting left ear of accused Peer Mohd. and grievous injury on the left hand of Gulab Shah and left forearm of accused Saheb Shah in a free fight; (iv) The cross cases from both the sides for using deadly weapons and inflicting grievous and simple 18 injuries with sharp & blunt objects on each other; & (v) No conclusion of the investigating officer Labhu Ram, PW 24 as to who was the aggressor either the complainant party or the accused party. 14. These above five factors lead to irresistible conclusion that it was a case of free fight, where the accused party did not have either any preplan or common object to make it a case of constructive criminal liability punishable u/s.149 IPC. When the case is not based on constructive liability, then the Court has to appreciate the evidence as to what is the individual act of the accused so as to hold him guilty. 15. In a free fight case, the defence stakes its claim on the right of private defence, which in the present case has also been taken. Right of private defence has been defined from Sections 96 to 106 IPC but this right is to be exercised with great caution and cannot be based on surmises. In order to arrive at the conclusion of right of private defence, the entire incident has to be viewed with great care and in its proper perspective. Following are the six categories when the right of 19 private defence of body extends to causing death as defined in Section 100 IPC: “First.- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly.- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.- An assault with the intention of committing rape; Fourthly.- An assault with the intention of gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly.- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.” 16. Viewed from the facts of the present case where the complainant party was going for grazing the cattle, there were no circumstances giving rise to the reasonable ground that the complainant party would either kill or cause grievous hurt to the accused party, in absence of which right of private defence cannot be claimed by the present accused appellants. When the right of private defence is not available and the case of 20 rioting with constructive liability is not established, then the court has to evaluate the evidence in the light of individual act. 17. From the evidence brought on record, apart from six injured from the side of the accused party, there are seven injured and one deceased Samde Khan from the side of the complainant party. So far as deceased Samde Khan is concerned, it has been stated by almost all the injured witnesses that the accused appellant Gulab Shah inflicted 'Dharia' blow on the head of deceased Samde Khan by which he died. Injured Aalam Khan PW1, Murad Khan PW2, Latif PW3, Samda PW4, Tayab Khan PW5, Mehardin PW6 and Gulam PW7 had categorically stated that it was the accused Gulab Shah by whose 'Dharia' blow, deceased Samde Khan died on account of the head injury. Though the learned counsel had said that Mehardin PW6 described Nizam Shah as the author of this injury in Ex.D.6 but when this portion was confronted, he denied the same. This cannot be termed as a contradiction. The act of accused appellant Gulab Shah in inflicting head injury with the aid of 'Dharia' is fully established from the evidence of above witnesses as well as recovery of