IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT 1. Vijay Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1043/2002) 2. Deep Chand & Others Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.913/2002) 3. Amar Singh Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.934/2002) D. B. Criminal Appeals under Sec.374 (2) Cr.P.C. against the judgment dated 12-7-2002 in Sessions Case No.138/2001 passed by Shri Rameshwar Vyas, RHJS, Additional Sessions Judge (Fast Track) Kishangarhbas (Alwar). Date of Judgment: February 11, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE GUMAN SINGH Mr. Biri Singh Sinsinwar] for the appellants. Mr. R.K. Mathur ] Mr. Kamlednra Sihag ] Mr. Ashvini Sharma, Public Prosecutor for the State. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Amar Singh, Deep Chand, Bhagwan, Rohtash and Vijay (appellants herein) along with co-accused Udai Ram, were put to trial before learned Additional Sessions Judge (Fast Track) Kishangarhbas (Alwar), who vide judgment dated July 12, 2002, while acquitting co-accused convicted and sentenced the appellants as under:- Vijay U/s.302 IPC: To undergo imprisonment for life and fine of Rs.5000/- in default to further suffer one month simple imprisonment. U/s.324 IPC: To undergo three years rigorous imprisonment and fine of Rs.2000/- in default to further suffer six months rigorous imprisonment. The substantive sentences were ordered to run concurrently. Deep Chand, Bhagwan and Rohtash: U/s.324/34 IPC: Each to undergo rigorous imprisonment for two years and fine of Rs.2000/- in default to further suffer six months rigorous imprisonment. Amar Singh: U/s.323 IPC: To undergo one year rigorous imprisonment and fine of Rs.1000/- in default to further suffer three months rigorous imprisonment. 2. It is the prosecution case that on October 29, 1994 Pappu (Pw.1) lodged a report (Ex.P-1) at Police Station Kotkasim to the effect that on the said day around 10 AM he had gone to their tubewell taking food for his father Ghisa Ram and uncle Meharchand. At the field he saw Ramavtar pouring manure. Informant then asked Ramavtar not to break dol (boundary wall) in the garb of pouring manure. Thereupon Amar Singh, Vijay, Udai Ram and Jhagar started hurling abuses. In the meanwhile informant's father and uncle also reached there. The assailants surrounded all of them. Amar Singh inflicted blow with lathi on the head of his uncle Mehar Chand. Vijay inflicted lathi-blow on the head of his father Ghisa Ram. When the informant tried to save them Rohtash, Deepchand and Bhagwan caught hold of him and Vijay inflicted blow with spade on the shoulder of informant. Hearing hue and cry Babu lal and Rajveer reached there and saved them. The injured persons were removed to hospital. On that report case under sections 147, 447, 323, 307 and 341 IPC was registered and investigation commenced. During the course of investigation Ghisa Ram succumbed to his injuries and section 302 IPC was added. Statements of witnesses under section 161 CrPC were recorded accused were arrested necessary memos were drawn 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) Kishangarhbas Alwar. Charges under sections 147, 148, 149, 323, 323/149, 324, 324/149, 307, 307/149, 302 and 302/149 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 13 witnesses. In the explanation under Sec.313 CrPC, the accused claimed innocence. One witness in support of defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. 3. We have heard learned counsel for the appellant and learned Public Prosecutor and with their assistance scanned the material on record. 4. Vide injury report (Ex.P-16) Ghisa Ram received following injuries:- 1. Lacerated wound 5cm x ½cm x bone deep on Lt. parietal region 2. Bruise 2xm x 1cm on lt. parietal region According to Post Mortem Report (Ex.P-27) in the opinion of Dr. (Pw.3) the cause of death was coma due to injury to brain and meninges. Vide injury report (Ex.P-17) Mehar Chand received one lacerated wound 3cm x 1cm x 1cm on middle of scalp. 5. At this juncture it may be noticed that accused persons also received injuries. Vide injury report (Ex.D-5) Amar Singh received following injuries:- 1. Swelling 6cm x 2cm middle finger of lt.hand. 2. Swelling 8cm x 4cm Lt.wrist joint 3. Swelling 8cm x 5cm lt.forearm with abrasion ½cm x ½cm at base of rt.thumb. Vide injury report (Ex.D-6) Udai Ram received following injuries:- 1. Abrasion 3cm x ½cm on Rt.wrist 2. Bruise 4cm x 4cm at Rt.side of back. 3. Incised wound 1cm X ½cm x on Rt.wrist wound ½ cm medial side. Vide injury report (Ex.D-7) Vijay Singh received one swelling 10cm x 3cm on Rt.knee joint. 6. Supporting the facts incorporated in the FIR Pappu (Pw.1) in his deposition stated that on the day of incident while he was taking food to his father and uncle at the field he saw that Ramavtar was pouring manure through camel-cart due to which they break the dol of their field, which was objected by him thereupon Udai Ram, Amar Singh, Vijay started hurling abuses. Hearing abuses his father and uncle also reached over there and objected the abuses, thereupon Vijay and Amar Singh inflicted lathi blows on the head of Mehar Chand, Vijay, Udai Ram and Amar Singh inflicted blows with lathi on the person of his father. When he (informant) tried to run away, Rohtash, Deep Chand and Bhagwana caught hold of him and Vijay inflicted blow with spade on right shoulder. Udai Ram and Amar Singh inflicted blows with lathi on right shoulder, neck and and hand. In his cross examination he admitted that cross case was pending against them. Testimony of Pappu gets corroboration from the testimony of injured eye witness Mehar Chand (Pw.4). 7. It is contended by the learned counsel for the appellants that the incident did occur in the field of accused party and the factum of accused party having sustained injuries was well established but the injuries on the person of the accused have not been explained by the prosecution witnesses, therefore the prosecution story should have been discarded. In our opinion such a submission cannot be accepted. In State of U.P. Vs. Mukunde Singh (1994)2 SCC 191, it was indicated that merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the evidence of the prosecution witnesses ought not to be rejected outrightly; if the court finds it probable that the accused might have acted in exercise of right of self defence, the court ought to proceed to consider whether they have exceeded the same. In Takhaji Hiraji Vs. Thakore Kubersing Chamansing (2001)6 SCC 145, the Apex court held that the court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting the prosecution case in its entirety for non explanation of the injuries sustained by the accused is erroneous. The Apex Court observed thus:- (Para 17) “It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non explanation of injuries assumes greater significance when the evidence consists of interest or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution.” 8. On a careful reading of the evidence adduced at the trial factual situation that emerges may be summarised thus:- (i) The incident occurred all of sudden when the complainant objected the working of accused at their field. (ii) Accused Amar Singh, Udai Ram and Vijay Singh sustained injuries in the same incident. (iii) Gheesa Ram received two injuries and he succumbed to his injuries subsequently. (iv) Cross case was pending against the complainant party. (v) The place of incident was the field that belonged to the accused party. 9. Having carefully analysed the material on record we find that origin and genesis of the occurrence have been withheld by the prosecution. The prosecution could not establish that the accused were aggressors. From the evidence it appears that both the parties fought together freely for the trial of their strength, thus each individual was responsible for his own act. In such a situation provisions of section 148 or 149 IPC can not be said to have been attracted as was held in Vishvas Aba Kurane Vs. State of Maharastra (AIR 1978 SC 414) 10. In order to adjudge as to who was responsible for the fatal injury sustained by deceased Gheesa Ram, when we look at the testimony of Autopsy Surgeon we find that his death was as a result of injury to brain. It could not be established that who caused the fatal injury since the allegations against appellants that Vijay inflicted lathi blow from back side, Udai Ram inflicted lathi blow from front side and Amar Singh also inflicted lathi blow. In a similar situation, the Apex Court in Amrik Singh Vs. State of Punjab (1993 Cr.L.J. 2857) indicated that where the injury which proved to be fatal was not attributed to any one of the accused, the accused who inflicted one injury on the head of the deceased was not responsible for other fatal injury. In that case accused Kewal Singh struck a gandasa blow from its sharp side on the head of Amarjeet Singh (deceased). Autopsy Surgeon found a lacerated wound on the scalp and incised on the front area of the head. He opined that the injuries were sufficient in the ordinary course of nature to cause death. The High Court held that Kewal Singh could not be held responsible for the other injury which was inflicted with blunt weapon and which proved to be fatal, therefore Kewal Singh was convicted under section 326 IPC. Having regard to the situation in which free fight is said to have taken place he was sentenced to suffer rigorous imprisonment for seven years. The Apex court confirmed the view of High Court but reduced the sentence from seven years to three years rigorous imprisonment. 11. Coming to the incident occurred with deceased Gheesa Ram we find that he sustained injuries in the course of sudden fight ensued in the field of accused party. The complainant party was also armed with deadly weapons and as many as three accused persons received injuries. In Dharman Vs. State of Punjab (AIR 1957 SC 324) the Supreme Court held that when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner and that the case against the accused falls within Exception 4 of Section 300 of the Indian Penal Code and the accused who caused the injury was guilty under Part I of section 304 and not under section 302 of the Indian Penal Code. 12. On a close scrutiny of the testimony of the eye witnesses examined by the prosecution we find it consistent qua the appellant Vijay only. So far as other accused are concerned the prosecution has failed to establish charges beyond reasonable doubt. The prosecution is not able to prove that the assailants assembled near the place of incident with a common object to kill Gheesa Ram. In these circumstances, we find ourselves unable to fasten vicarious criminal liability on the assailants. The prosecution although appears to have withheld the origin and genesis of the occurrence, but looking to the fact that the lathi was used in inflicting the injury, we are of the opinion that the incident occurred all of sudden and on a spur of moment. Since Vijay inflicted injuries on the person of Gheesa Ram and he did not behave in cruel or unusual manner, it can be presumed that Vijay had knowledge that the blow inflicted by him was likely to cause death of Gheesa Ram, even though he had no intention of causing death or such bodily injury as is likely to cause death. Therefore the appellant Vijay is found guilty of the offence punishable under Part II of Section 304 IPC. We grant benefit of doubt to Amar Singh, Deep Chand, Bhagwan and Rohtash looking to the fact that evidence of eye witnesses are not consistent against them. 13. For these reasons, we dispose of the instant appeals in the following terms:- (i) We allow the appeal of appellant Amar Singh and acquit him of the charge under section 323 IPC. Appellant Amar Singh is on bail, he need not surrender and his bail bonds stand cancelled. (ii) We allow the appeal of appellants Deep Chand, Bhagwan and Rohtash and acquit them of the charge under section 324/34 IPC. These appellants are on bail, they need not surrender and their bail bonds stand cancelled. (iii) We partly allow the appeal of appellant Vijay and instead of section 302 we convict him under section 304 part II IPC and looking to the fact that the appellant has already undergone confinement for a period of more than five years and nine months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however confirm conviction and sentence of the appellant under section 324 IPC. Since the appellant Vijay has already suffered the sentence awarded to him under section 324 IPC and he is in jail, he shall be set at liberty forthwith, if he is not required to be detained in any other case. (iv) The impugned judgment of learned trial court stands modified as indicated above. (Guman Singh),J. (Shiv Kumar Sharma)J. arn/