1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Balbir Vs. State of Rajasthan (1) D.B.CRIMINAL APPEAL NO.713/2006 Dilip Singh Vs. State of Rajasthan (2) D.B.CRIMINAL APPEAL NO.623/2006 Hanuman Vs. State of Rajasthan (3) D.B.CRIMINAL APPEAL NO.688/2006 Prem Kumar & ors. Vs. State of Rajasthan (4) D.B.CRIMINAL APPEAL NO.654/2006 Jai Singh & ors. Vs. State of Rajasthan (5) D.B.CRIMINAL APPEAL NO.700/2006 UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. Date of Judgment: 18th May, 2009 P R E S E N T HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.M.D.Purohit,Sr.Adv.) for appellants in D.B.Criminal Mr.Devendra Godara ) Appeals No.623/2006,688/2006 Mr.R.S.Gill, ) 654/2006 and 700/2006. Mr.Suresh Kumbhat ) for appellant in D.B.Criminal Mr.B.L.Dudi ) Appeal No.713/2006. Mr.S.P.Joshi ) Mr.K.R.Bishnoi, Public Prosecutor. REPORTABLE BY THE COURT : (PER THANVI J.) 1. These are the five appeals; one filed by Balbir 2 being D.B.Criminal Appeal No.713/2006 arising out of the judgment dt.3.7.06 passed by the learned Addl.Sessions Judge, Rajgarh, Distt.Churu, in Sessions Case No.29/04 (41/03), whereby accused appellant Balbir s/o Jagu Das was convicted of the offence u/s.148 IPC with two years' R.I. alongwith fine of Rs.1000/- & in default, to further undergo two months' R.I.; under Sec.307/149 IPC with five years' R.I. alongwith fine of Rs.2500/- & in default, to further undergo five months' R.I. & u/s.302/149 with life imprisonment alongwith fine of Rs.5000/- & in default, to further undergo ten months' R.I., all the substantive sentences were ordered to run concurrently. However, Smt.Vedo, Chandravali, Bhateri and Vimla were acquitted of the above charges. Accused Lichhman s/o Jagu Das died during trial and accused Jai Singh is still absconding. This case was relating to FIR No.189/03, Police Station, Rajgarh. Remaining four appeals are relating to FIR No.190/03 arising out of the judgment dt.3.7.06 passed by the learned Addl.Sessions Judge, Rajgarh, Distt.Churu, in Sessions Case No.40/03 (36/03), whereby out of 30, accused Surendra s/o Dharampal was acquitted of the charges levelled against and Kashi Ram s/o Moka Ram died on 22.3.06, 3 therefore, proceedings against him were dropped. Rest of the accused appellants were convicted of the offence u/s.148 IPC with two years' R.I. alongwith fine of Rs.1000/- & in default, to further undergo two months' R.I.; u/s.302/149 with life imprisonment alongwith fine of Rs.5000/-each & in default, to further undergo ten months' R.I.; u/s.323/149 IPC with one year's R.I. alongwith fine of Rs.500/- each & in default, to further undergo one month's R.I.; and u/s.447 IPC with three months' R.I. alongwith fine of Rs.250/- each & in default, to further undergo 15 days' R.I., all the substantive sentences were ordered to run concurrently. Out of these convicted 28 accused, accused Dilip Singh has filed Appeal No.623/06; Hanuman has filed Appeal No.688/06; Prem Kumar, Kundan Ram, Surja Ram and Ajay Kumar have filed Appeal No.654/06 and remaining 22 accused viz; (1) Jai Singh, (2) Lokram, (3) Dharam Singh, (4) Ramveer, (5) Ashok Kumar, (6) Subhash, (7) Om Prakash, (8) Rajesh Kumar, (9) Chanan Ram, (10) Balveer, (11) Ram Narain, (12) Prabhu Ram, (13) Dhanpat, (14) Jalle Singh, (15) Raghuveer, (16) Nopa Ram, (17) Meer Singh, (18) Bajrang, (19) Shyam Sunder, (20) Ramphal, (21) Jai Prakash and (22) Rambhakt have filed Appeal 4 No.700/06. 2. Since the incident of the case with regard to date, time and place is the same and the learned trial Judge has convicted all of them with the aid of Section 149 IPC by holding both the parties as aggressors, therefore, they are being disposed-of by this common judgment. 3. Both the parties filed their separate FIRs at Police Station, Rajgarh. The author of the FIR No.189/03 is Jai Prakash in D.B.Cr.Appeal No.713/06 filed by accused Balbir s/o Jagu Das in which it is alleged that on 6.7.03 at 11.15 AM, accused persons came at the deity land of village Rohi, which was earlier cultivated by Dharam Singh and his family and last year, it was cultivated by Mandir Vikas Samiti of the village. In the morning at 7.30 AM, Dharam Singh, Bhailal, Dhanpat, Rambharat, Phul Singh, Balbeer s/o Sher Singh, Subhash, Karan Singh etc. alongwith Jai Singh, Dhanpat, Meer Singh, Shyamlal, Balveer r/o Mithi Redwal went for cultivating the land on tractor. When they started cultivating, Dharam Singh s/o Jagu Ram with rifle, Jai Singh s/o Dharam Singh with rifle, Omprakash s/o Dharam Singh, 5 Sahi Ram, Balveer & Kashi Ram, all sons of Jagu Das, Badama widow of Jagu Das and wives of Dharam Singh, Balveer and Kashi Ram r/o Mithi Redwal came with `kulhari', `pharsi' and lathis etc. and attacked on them. Jai Singh fired at him, which hit his left thigh. Thereafter, Balveer s/o Sher Singh, Subhash s/o Mahendra Singh and Karan Singh s/o Hazarilal were also fired by Dharam Singh and Jai Singh, which hit Karan Singh, Balveer and Subhash with the result, the blood came out. Thereafter, they went to the hospital, where Karan Singh died. Dharam Singh etc. fired in order to kill them and they were all injured. Upon this report, the police registered the case u/ss.302, 307, 324, 323, 147, 148 & 149 IPC and Sec.27 of the Arms Act vide FIR No.189/03. The police arrested the accused and started investigation. After investigation, the police filed challan against seven persons viz; Lichhman, Balbir s/o Jagu Das, Vedo, Chandravali, Bhateri, Vimla and Jai Singh under ss.302, 307, 323, 147, 148 and 149 and Sec.27 Arms Act. Lichhman died during trial and Jai Singh was absconding, therefore, challan u/s.299 CrPC was filed against him. Accused were charged u/ss.148, 302/149 and 307/149 IPC. The prosecution examined 17 witnesses. The statements of 6 the accused were recorded u/s.313 CrPC. They produced Girdharilal, DW 1 in their defence. After hearing the arguments, the learned trial Judge acquitted lady accused viz; Vedo, Chandravali, Bhateri and Vimla but convicted the accused appellant Balbir s/o Jagu Das as above. 4. The author of the FIR No.190/03 is Balveer s/o Jagu Ram, who is the appellant in Appeal No.713/06 in which it is allged that on 6.7.03, in the morning at 7.30 AM, when he alongwith his family members went to their field for cultivation, then large number of persons came there from the side of the village in five tractors. He saw Jai Singh, Rambakht, Manphul, Bajrang, Phul Singh, Meer Singh, Raghuveer, Dhanpat, Pawan, Jaiprakash, Kunan, Dalip, Ram Kumar, Dharam Singh, Surendra, Balveer s/o Sher Singh, Lok Ram, Omprakash, Shyamlal, Karan Singh, Subhash, Charan Singh, Surja Ram, Ramnarain, Ashok, Kashi Ram, Dalveer, Rajpal, Chanan Singh, Rajesh, Surendra, Prem, Mahaveer, Ramveer, Prabhu Ram, Hanuman Singh, Nopa Ram, Rajveer and other villagers of Mithi Redwal. The tractors were of Jai Singh, Meera Singh, Dhanpat, Jalle Singh and Bhailal and jeep was of Ashok Kumar. 7 They all exhorted uttering the words “Maro Maro”. First of all, Rambakht, Meera Singh, Jaiprakash and Dharam Singh gave lathi blows and rest of the accused inflicted blows with lathis and axe to his family members. He ran away from the spot. They all killed his brother Dharam Singh, Omprakash and Kashi Ram. On this report, the police registered a case u/ss.302, 307, 323, 324, 147, 148, 149 & 447 IPC vide FIR No.190/03 and commenced investigation. After investigation, all the 30 accused were chargesheeted. After hearing the arguments on charge, the accused were charged u/ss.148, 302/149, 307/149, 323/149 and 447 IPC to which they pleaded not guilty. The prosecution examined 21 witnesses. The statements of the accused were recorded u/s.313 CrPC. They produced Pyarelal, DW 1 and Surendra Kumar, DW 2 in their defence. After hearing the arguments, the learned trial Judge convicted the accused appellants as above. 5. We have heard the arguments of learned counsel for the appellants and the learned Public Prosecutor. 6. Learned counsel for the appellants in all the appeals have not questioned the conviction of the 8 accused appellants, as according to them, it was a case of free fight and the learned trial Court has held both the parties as aggressors but their contention is that both the cases are covered under Section 304 part II IPC instead of Section 302 IPC, therefore, they should be sentenced to the period already undergone because most of the accused have undergone sentence approximately for a period of about 6 years and if their remission period is counted, it will exceed seven years. Appellant Balbir s/o Jagu Das in D.B.Cr.Appeal No.713/06 is still in custody since 9.7.03 and Dharam Singh, Ramveer, Balveer s/o Sher Singh, Prabhu Ram, Raghuveer and Jai Prakash in D.B.Cr.Appeal No.700/06 are also in custody and rest of the accused appellants have been enlarged on bail recently. 7. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 8. In view of the submissions, made at the bar, we are not going to disturb the finding of the learned trial Judge with regard to conviction of the accused appellants u/ss.148, 307/149 and 447 IPC dealing with the common object because it is the settled law that if 9 free fight takes place and it is not established as to who is the aggressor, then the question of common object does not exist because it de-links the concept of constructive liability but when there is a free fight and both the parties are aggressors, then the concept of constructive criminal liability cannot be ignored and it is said to have been established in such a situation in both the cross cases. Now, we are confined as to whether it is a case of culpable homicide amounting to murder punishable u/s.302 IPC or culpable homicide not amounting to murder punishable u/s.304 part I or part II IPC. 9. It is contended by the learned counsel for the appellants that it is a case of offence u/s.304 part II IPC but we are not prepared to accept this contention of the learned counsel for the appellants because the offence u/s.304 part II IPC is made out only if the death is caused with the knowledge, whereas u/s.304 part I IPC, the element of intention is existing. To distinguish culpable homicide not amounting to murder as defined u/s.299 and culpable homicide amounting to murder as defined u/s.300 IPC, it may be summarized by the following Chart: 10 Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done.... Subject to certain exceptions culpable homicide is murder if the act by which the death caused is done.... INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 10. In both the cases, the element of intention and knowledge is existing. An act is said to be intentional in so far as it exists in idea before it exists in effect, whereas knowledge is awareness of the consequence of the act. Culpable homicide is murder, if that knowledge 11 of the act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and without any excuse for incurring the risk of causing death or such bodily injury as is mentioned above, whereas intention to make the act punishable u/s.304 part I IPC should be either of causing death or of such bodily injury as is likely to cause death and for culpable homicide amounting to murder, that intention must be coupled with causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or that injury is sufficient in the ordinary course of nature to cause death. Though distinction is very thin but it depends upon the culpability of the act i.e. mens rea, which should be gathered from the facts and circumstances of each case and the manner in which the offence has been committed. Apart from this, if the case falls under any of the Four Exceptions of Section 300 IPC, then also, it is not culpable homicide amounting to murder. The present case is not borne out under any of the Four Exceptions of Section 300 IPC but the facts as have emerged from the record are that it is a case, which is covered under Clause (b) of Section 299 IPC which defines culpable homicide not amounting 12 to murder. This thin distinction as discussed above is with regard to likelihood of causing bodily injury in case of Section 299 IPC and likelihood of causing bodily injury to the person to whom harm is caused within the knowledge of the offender in a case of Section 300 IPC. Meaning thereby that element of likelihood of knowledge of causing bodily injury and the person to whom harm is caused, is existing in Section 300 IPC i.e. culpable homicide amounting to murder, whereas simpliciter likelihood of causing bodily injury without knowing to whom the harm is caused, brings the case u/s.299 IPC defining culpable homicide not amounting to murder. To distinguish Clause (b) of both the Sections, we may say that likelihood without qualifying intention is an act done under probability covered under Sec.299 IPC and if that likelihood is coupled with an idea of certainty, then it is a case which falls under Sec.300 IPC. 11. From the FIR and the statements of the prosecution witnesses, it is abundantly clear from the site plan Ex.P.39 and Ex.P.39A of Sessions Case No.40/03, which is Ex.P.37 in Sessions Case No.41/03, where point-1 is the deity land in the shape of field. 13 The portion `A' in the site plan is the one part of the field and portion `B' is the another part of the field. From portion `E to F', the field has been cultivated with the help of tractor. The point `X' is the place where Karan Singh died and at point `X-1 to X-3', the dead bodies of Kashi Ram, Omprakash and Dharam Singh were lying. In between these two places, the fight took place between both the sides with deadly weapons and firearms and both the parties came from the different directions. From the record, it is not established that as to which party was in possession over the land. Both parties claimed their cultivation on the land. When one party started cultivation, other party also went to cultivate it. The learned trial Judge has also given the finding to this effect at page 16 of the judgment in Sessions Case No.41/03 that from the documents, it is not established as to which party was in possession over the disputed land. This finding of the learned trial Judge coupled with the oral and documentary evidence goes to show that to ascertain their possession over the disputed land, they started fighting. Both the parties became aggressors and used deadly weapons including firearms resulting in death of Karan Singh from one side and three persons viz; Kashi Ram, Omprakash and 14 Dharam Singh from the other side. It is also not established as to which of the accused inflicted injury to which deceased and the injured, in absence of which, it can be inferred that both the parties were aggressors and are guilty of the offence of rioting armed with deadly weapons punishable u/s.148 and of constructive criminal liability u/s.149 IPC. In such a situation, when it is not established as to which accused inflicted injury to which deceased in a free fight, then their conviction u/s.304 part I IPC is more appropriate than u/s.304 part II IPC because the act is coupled with the intention of causing such bodily injury as is likely to cause death as defined u/s.299 IPC. Had one party been aggressor or having knowledge that such bodily injury will cause death to whom it is pointed, then it would have been a case of culpable homicide amounting to murder as defined u/s.300 IPC. In view of the above, we are unable to agree with the contention of the learned counsel for the appellants that it is a case falling under Section 304 part II IPC. In our view, the site plan, oral and documentary evidence leads us to the only conclusion that it is a case of culpable homicide not amounting to murder punishable u/s.304 part I IPC alongwith other offences for which conviction has been 15 recorded and has not been questioned. 12. So far as the sentence part is concerned, normally once a person is convicted u/s.304 part I IPC, he should be sentenced to 7 years but in these appeals, accused Balbir s/o Jagu Das in D.B.Cr.Appeal No.713/2006 is still in custody and has already suffered a sentence for about 6 years. Likewise, six appellants viz; Dharam Singh, Ramveer, Balveer s/o Sher Singh, Prabhu Ram, Raghuveer and Jai Prakash in cross D.B.Cr.Appeal No.700/06 have also suffered the sentence for about 6 years and rest of the accused appellants, who have recently been bailed out, have undergone the sentence approximately for more than 5 years. If their remission period is counted, then it might exceed 7 years. In such a situation, the ends of justice will be met, if they are sentenced to the period already undergone. 13. Consequently, we allow these appeals in part and the accused appellants are convicted & sentenced as under: (i) Accused appellants (1) Jai Singh, (2) Lokram, (3) Dharam Singh, (4) Ramveer, (5) Ashok Kumar, (6) Subhash, (7) Om Prakash, (8) Rajesh Kumar, (9) 16 Chanan Ram, (10) Balveer, (11) Ram Narain, (12) Prabhu Ram, (13) Dhanpat, (14) Jalle Singh, (15) Raghuveer, (16) Nopa Ram, (17) Meer Singh, (18) Bajrang, (19) Shyam Sunder, (20) Ramphal, (21) Jai Prakash and (22) Rambhakt in D.B.Cr.Appeal No.700/2006; accused appellant Dilip Singh in D.B.Cr.Appeal No.623/2006; accused appellants (1) Prem Kumar, (2) Kundan Ram, (3) Surja Ram and (4) Ajay Kumar in D.B.Cr.Appeal No.654/2006; and accused appellant Hanuman in D.B.Cr.Appeal No.688/2006, are convicted of the offence under Section 304 part I read with 149 IPC instead of Section 302/149 IPC recorded by the learned Addl.Sessions Judge, Rajgarh, Distt.Churu vide his judgment dt.3.7.2006 and sentenced to the period already undergone alongwith a fine of Rs.5000/-each and in default, to undergo ten months' R.I. Their conviction and sentences under Sec.148 IPC with two years' R.I. alongwith fine of Rs.1000/-each & in default, to further undergo two months' R.I.; under Sec.323/149 IPC with one year's R.I. alongwith fine of Rs.500/- each & in default, to further undergo one month's R.I.; and under Sec.447 IPC with three months' R.I. alongwith fine of Rs.250/- each & in default, to further undergo 15 days' R.I. are 17 maintained. All the substantive sentences shall run concurrently. (ii) Accused appellant Balbir s/o Jagu Das in D.B.Cr.Appeal No.713/2006 is convicted of the offence under Section 304 part I read with 149 IPC instead of Section 302/149 IPC recorded by the learned Addl.Sessions Judge, Rajgarh, Distt.Churu vide his judgment dt.3.7.2006 and sentenced to the period already undergone alongwith a fine of Rs.5000/- and in default, to undergo ten months' R.I. His conviction and sentences under Sec.148 IPC with two years' R.I. alongwith fine of Rs.1000/- & in default, to further undergo two months' R.I. and under Sec.307/149 IPC with five years' R.I. alongwith fine of Rs.2500/- & in default, to further undergo five months' R.I. are maintained. All the substantive sentences shall run concurrently. (iii) Accused appellants Balbir s/o Jagu Das in D.B.Cr.Appeal No.713/06 and Dharam Singh, Ramveer, Balveer s/o Sher Singh, Prabhu Ram, Raghuveer and Jai Prakash in D.B.Cr.Appeal No.700/06 are in custody, they shall be released forthwith, if not required in any other case, on depositing of fine awarded on different counts. Rest of the accused appellants are on bail & they are granted thirty days' time from today to deposit the fine, awarded on different counts, else they will undergo the sentence 18 awarded in default of payment of fine by issuing warrant of arrest against the defaulting accused by the learned trial Court. (DEO NARAYAN THANVI), J. (A.M.KAPADIA), J. RANKAWAT JK, PS