IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Harbhan & Others Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1595/2002) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 29-10-2002 in Sessions Case No.7/2001 (165/2000) passed by Shri Bhagwandas Agarwal, RHJS, Additional Sessions Judge (Fast Track) No.3, Bharatpur. Date of Judgment: July 02, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Suresh Sahni ] for the appellants. Mr. R.M. Sharma ] Mr. I. R. Saini ] Mrs.Usha Devi Chauhan] Mr. Ashvini Kumar Sharma, Public Prosecutor for the State. Mr. J.P. Sharma, for the complainant. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) Two groups indulged in a free fight resulting in injuries to persons of both groups and death of Dhanesh. Injuries caused by firearm to Dhanesh have been attributed to one Mahendra, who could not be apprehended by police and still absconding. Appellants, seven in number along with five co- accused persons, were put to trial before learned Additional Sessions Judge (Fast Track), No.3, Bharatpur. Learned Judge vide judgment dated October 29, 2002 while acquitting five co-accused, convicted and sentenced the appellants as under:- Appellants Harbhan, Lekha, Hukam, Mohan Singh and Hari Charan: U/s.302/149 IPC: Each to suffer imprisonment for life and fine of Rs.2000/-, in default to further suffer rigorous imprisonment for one year. U/s.148 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs.500/-, in default to further suffer rigorous imprisonment for two months. U/s.307/149 IPC: Each to suffer rigorous imprisonment for five years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.325/149 IPC: Each to suffer rigorous imprisonment for two years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.323/149 IPC: Each to suffer rigorous imprisonment for one year. Appellant Jai Singh: U/s.302/149 IPC: To suffer imprisonment for life and fine of Rs.2000/-, in default to further suffer rigorous imprisonment for one Year. U/s.148 IPC: To suffer rigorous imprisonment for two years and fine of Rs.500/-, in default to further suffer rigorous imprisonment for two months. U/s.307 IPC: To suffer rigorous imprisonment for five years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.325/149 IPC: To suffer rigorous imprisonment for two years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.323/149 IPC: Each to suffer rigorous imprisonment for one year. U/s.3/25 Arms Act: To suffer rigorous imprisonment for one year and fine of Rs.1000/-, in default to further suffer rigorous imprisonment six months. Appellant Hemu @ Hem Raj: U/s.302/149 IPC: To suffer imprisonment for life and fine of Rs.2000/-, in default to further suffer rigorous imprisonment for one year. U/s.148 IPC: To suffer rigorous imprisonment for two years and fine of Rs.500/-, in default to further suffer rigorous imprisonment for two months. U/s.307/149 IPC: To suffer rigorous imprisonment for five years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.325 IPC: To suffer rigorous imprisonment for two years and fine of Rs.1000/-, in default to further suffer rigorous imprisonment for six months. U/s.323/149 IPC: To suffer rigorous imprisonment for one year. The substantive sentences were ordered to run concurrently. 2. The prosecution story is woven like this:- In the Parcha Bayan recorded on June 21, 2000 Ramesh Chand (Pw.1) stated that on the said day around 5.45 AM while his younger brother Dhanesh along with cousin Rajesh had gone to Jungle for easing themselves, they were surrounded by Harbhan, Harcharan, Jaisingh, Hemu etc. who had Guns, Lathis and Pharsis in their hands. Somehow Dhanesh and Rajesh escaped and came to house with Mewa Ram and narrated the incident. In the meanwhile Harbhan, Hukam, Lekha, Jai Singh, Mahendra, Harcharan, Mohan, Gopal, Hemu @ Hemraj, Chanda, Saroj, Omwati and others armed with Guns, Kattas, Lathis and Pharsis also came to the house. Harbhan, Hukam and Lekha exhorted others to kill complainant party. Thereupon Mahendra, who was armed with gun, opened fire at Dhanesh that hit his hip and waist. Harbhan also caused lathi blow on his right eyebrow. Jai Singh, who had Katta, opened fire at Mewa Ram that hit his right hand. Harcharan caused lathi blow on the head of Mewa Ram and Deshraj gave blow with lathi on the right leg. Mohan also opened fire but it did not hit anybody. Hemu @ Hemraj gave lathi blow on the mouth of informant as a result of which his three teeth got uprooted. The injured were removed to hospital where Dhanesh succumbed to his injuries. On that parcha bayan case under sections 147, 148, 149, 323, 324, 307, 325 and 302 IPC was registered and investigation commenced. Necessary memos were drawn, statements of witnesses were recorded, accused were arrested 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) No.3 Bharatpur. Charges under sections 148, 302, 302/149, 307, 307/149, 325, 325/149, 324, 324/149, 323, 323/149 IPC and 3/25 Arms Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Sec.313 CrPC, the appellants claimed innocence. Appellant Harbhan stated that on the date of incident Dhanesh, Mewa Ram and Ramesh surrounded him and gave beating to him. When Jaising, Mohan and Lekha tried to save him they were also beaten up. Appellant Lekha stated that when he went to save his brother Harbhan the incident occurred. Hemu @ Hemraj, Hukam and Haricharan stated that they were not present at the time of incident. Appellant Mohan and Jai Singh stated that Dhanesh, Mewa and Ramesh gave beating to Harbhan and when they tried to save Harbhan the incident occurred. One witness Dr.K.C.Bansal (Dw.1) was examined in defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated above. 3. We have heard the submissions advanced before us by learned counsel for the appellants, learned Public Prosecutor and learned counsel for the complainant and with their assistance scanned the material on record. 4. Death of Dhanesh was concededly homicidal in nature. Vide postmortem report (Ex.P-22) following antemortem injuries were found on the dead body:- 1 Lacerated wound 3cmx 1cm placed transversly on above Rt. eye brow muscle deep with dried clotted blood caused by blunt object. 2. Multiple punctured lacerated wound spread in area of 25cm x 21cm over Lt. iliac fossa, Lt. lateral aspect hip, Lt. gluetal area and upto upper ¼ of lateral aspect of Lt. thigh of size ½ x ½ to 1cm with collar of abrasion dried clotted blood. Dr. Ashok Mathur (Pw.14), who performed autopsy on the dead body, opined that cause of death was shock due to ante mortem injuries. Mewa Ram (Pw.3) vide injury report (Ex.P- 23) received following injuries:- 1 Lacerated wound 4cmx 1cm x bone deep placed on Rt. Postero parietal area of scalp with fresh clotted blood. 2. Multiple punctured lacerated wounds ½ x ½ collar of abrasion placed over and extending from distal 1/3 Rt.arm upto Rt. hand on dorsal and lateral aspect. 3. Punctured lacerated wound 1cm x ½ cm with collar of abrasion on lateral outer aspect of wound placed 11cm away from Rt. nipple. Ramesh (Pw.1) vide injury report (Ex.P-25) received following injuries:- 1. Diffuse swelling over Lt.side upper lip with contusion on Lt. side buccal mucosa of upper lip Rt. upper incisor shows mobility with c/o pain and tenderness and Lt. upper central lateral incisor and Lt. upper canine missing with leaving fresh socket with bleeding. 2. Abraded bruise 3cm x 2cm x red in colour on Lt. side hip c/o pain and tenderness. 3. Abrasion 3cm x 3cm on medial aspect of Rt. leg. 4. Two scratch abrasions 3cm x ¼ cm each on Rt. knee cap. 5. At this juncture it may be noticed that accused party also received injuries in the same incident. Appellant Harbhan vide injury report (Ex.D-9) received following injuries:- 1. Bruise 4cm x 2cm on lateral aspect of lower 1/3 of left thigh. 2. Multiple abrasions 8 in number about 5 to 8cm in length on the antero medial aspect and ¼ cm in wide of left thigh. 3. Abrasion 2cm x 1cm on the middle of anterior aspect of right leg. 4. Abrasion 2cm x 1cm on lower 1/3 of anterior aspect of right leg. Appellant Mohan Singh vide injury report (Ex.D- 10) received following injuries:- 1. Bruise 3cm x 1cm on exterir aspect of upper 1/3 of left forearm. 2. Abrasions 2 in number 1cm x ½ cm and 1cm x ½ cm on the anterior aspect of upper 1/3 of left leg. Appellant Jay Singh vide injury report (Ex.D- 11) received following injuries:- 1. Lacerated wound 3cm x ½ cm x skin deep on left eye brow region of forehead. 2. Bruise 3cm x 2cm on left shoulder. 3. Bruise 2cm x 1cm on left side of neck. 6. Learned counsel for the appellants criticised the impugned judgment and urged that origin and genesis of the case has been withheld by the prosecution since injuries sustained by the members of the accused party were not explained. Learned counsel placed reliance on Bhagwan Swaroop Vs. State of Madhya Pradesh (1992)2 SCC 406 wherein the Apex Court indicated thus:- “A Lathi is capable of causing a simple as well as a fatal injury. Whether in such fact the injuries actually caused were simple or grievous is of no consequence. It is the scenario of a father being given lathi blows which has to be kept in mind. In such a situation a son could reasonably apprehend danger to the life of his father and his firing a gunshot at that point of time in defence of his father is justified. It must therefore, be held that the accused had fired the gunshot to defend the person of his father. Therefore conviction under section 302 for causing death of the deceased is liable to be set aside.” 7. Reliance is also placed on Babu Ram Vs. State of Punjab (2008)3 SCC 709, wherein the Apex Court in para 18 indicated thus:- “It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:- 1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; 3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. [See Lakshmi Singh v. State of Bihar; AIR 1976 SC 2263] 8. Having closely analysed the testimony of injured eye witnesses viz. Ramesh (Pw.1) and Mewa Ram (Pw.4) we find that there was a melee at the time of incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of Dhanesh. Ratan Lal Bhardwaj (Pw.17), who investigated the case, deposed in his cross examination thus:- "इसकेसमɅ बोसकेसदज[ हआ ु थाǔजसकानÈ शामौकामɇनेबनायाथा।बोसकेसमɅ मजǾबान लेखा, हरभान, मोहनिसंह, जयिसंहकामेǑडकलमुआयनापुिलसकेूितवेदनपरमेǑडकल Ï यूǐरः टƮाराǑकयागयाथा।" It also appears from the material on record that complainant party had no previous enmity. Bhagwat (Pw.7), father of deceased, deposed in his cross examination as under:- "घटनासेपहलेमुलǔजमानसेहमारȣ कोईरंǔजशनहȣंथी।" Informant Ramesh (Pw.1) also deposed thus:- "इससेपूव[ हमारावमु लǔजमानकाकोईझगडानहȣंथा।" Ramesh did not explain the injuries sustained by the accused party. In his deposition he stated as under:- "... उसरोजहरभानकोकोईचोटनहȣंआईथी।मोहनिसंह, जयिसंहऔरलेखाकेभीकोईचोट नहȣंआईथी।" 9. In Dharman v. State of Punjab (AIR 1957 SC 324) there was a dispute regarding Shamlati land existed between the parties. The accused claimed that the land was in their possession whereas the party of the deceased put forward the claim that the land had been in their possession for many years. On the date of the incident a fight ensued. The deceased died in the course of a sudden and free fight by the injury inflicted by the appellant. The deceased's party was also armed with dangerous weapons. It was held by the Supreme Court, that when two such contending parties, each armed with weapons, when clashed and in the course of free fight some injuries were inflicted on one party or the other, it could not be said that either of them acted in cruel or unusual manner. 10. In Kambi Nanji v. State of Gujarat (AIR 1970 SC 219) their Lordships of the Supreme Court indicated that where there was a melee at the time of incident and the two groups indulged in a free fight resulting in injuries to persons of both groups and death of two, if the court comes to the conclusion that the injuries sustained by the persons were in the course of a free fight then there is no question of common object and only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them. 11. In Munir Khan Vs. State of UP (AIR 1971 SC 335) it was indicated that in a mutual fight there is no common object and none of the accused can be convicted by having recourse to section 149 IPC. 12. In the instant case as already noticed the complainant party and accused party had no previous enmity and the incident occurred suddenly and without premeditation. There was a melee at the time of incident and two groups indulged in a free fight resulting in injuries to persons of both groups and death of Dhanesh. Members of complainant party were also armed with weapons and in the fight appellants Lekha, Harbhan, Mohan Singh and Jaisingh had sustained injuries. Those injuries were not superficial and the prosecution witnesses did not explain those injuries. This fact gives rise to the inference that the prosecution is guilty of suppressing the genesis and origin of the occurrence. Since it was a sudden fight and without premeditation there was no common object and only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them. Simple injury over right eyebrow of Dhanesh has been attributed to appellant Harbhan whereas injuries on the person of Mewa Ram (Pw.4) and Ramesh (Pw.1) have been respectively attributed to appellants Jai Singh and Hemu @ Hem Raj. As Mahendra is not before us we refrain ourselves to deal with his case and hold that findings arrived in this case will not affect the trial of Mahendra. 13. On analysing the evidence adduced at the trial from the point of view of trustworthiness we find that possibility of over implication of appellants Lekha, Hukam, Mohan Singh and Hari Charan cannot be ruled out. Appellants Harbhan, Hemu @ Hem Raj and Jai Singh are however found guilty for their individual acts. 14. The prosecution is thus able to establish charge under section 323 IPC against appellant Harbhan, under section 307 IPC and 3/25 Arms Act against appellant Jai Singh and under section 325 IPC against appellant Hemu @ Hemraj beyond reasonable doubt. 15. For these reasons, We dispose of the instant appeal in the following terms:- (i) we partly allow the appeal of Harbhan, Jai Singh and Hemu @ Hemraj and convict and sentence them as under:- (a) Harbhan: U/s.323 IPC: To suffer imprisonment for one year. (b) Jai Singh: U/s.307 IPC To suffer rigorous imprisonment for five years and fine Rs.1000/- in default to further suffer six months rigorous imprisonment. U/s.3/25 Arms Act: To suffer rigorous imprisonment for one year and fine Rs.1000/- in default to further suffer six months rigorous imprisonment. (c) Hemu @ Hemraj: U/s.325 IPC To suffer rigorous imprisonment for two years and fine Rs.1000/- in default to further suffer six months rigorous imprisonment. We however acquit the aforesaid appellants of the charges under sections 148, 302/149, 307/149, 325/149 and 323/149 IPC. (b) Appellant Harbhan has already suffered the imprisonment for more than one year and he is on bail. He need not surrender and his bail bonds stand discharged. (c) Appellants Hemu @ Hemraj and Jai Singh have respectively suffered the imprisonment for five years eleven months and nine days and six years one month and three days. Since these appellants have already suffered the sentence awarded to them and they are in jail, they shall be set at liberty forthwith, if they are not required to be detained in any other case. (ii) We allow the appeal of appellants Lekha, Hukam, Mohan Singh and Hari Charan and acquit them of the charges under sections 148, 302/149, 307/149, 325/149 and 323/149 IPC. Appellants Lekha, Hukam and Hari Charan are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mohan Singh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/ Harbhan & Others Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.1595/2002) July 02, 2008. HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Suresh Sahni ] for the appellants. Mr. R.M. Sharma ] Mr. I. R. Saini ] Mrs.Usha Devi Chauhan] Mr. Ashvini Kumar Sharma, Public Prosecutor for the State. Mr. J.P. Sharma, for the complainant. For these reasons, We dispose of the instant appeal in the following terms:- (i) we partly allow the appeal of Harbhan, Jai Singh and Hemu @ Hemraj and convict and sentence them as under:- (a) Harbhan: U/s.323 IPC: To suffer imprisonment for one year. (b) Jai Singh: U/s.307 IPC To suffer rigorous imprisonment for five years and fine Rs.1000/- in default to further suffer six months rigorous imprisonment. U/s.3/25 Arms Act: To suffer rigorous imprisonment for one year and fine Rs.1000/- in default to further suffer six months rigorous imprisonment. (c) Hemu @ Hemraj: U/s.325 IPC To suffer rigorous imprisonment for two years and fine Rs.1000/- in default to further suffer six months rigorous imprisonment. We however acquit the aforesaid appellants of the charges under sections 148, 302/149, 307/149, 325/149 and 323/149 IPC. (b) Appellant Harbhan has already suffered the imprisonment for more than one year and he is on bail. He need not surrender and his bail bonds stand discharged. (c) Appellants Hemu @ Hemraj and Jai Singh have respectively suffered the imprisonment for five years eleven months and nine days and six years one month and three days. Since these appellants have already suffered the sentence awarded to them and they are in jail, they shall be set at liberty forthwith, if they are not required to be detained in any other case. (ii) We allow the appeal of appellants Lekha, Hukam, Mohan Singh and Hari Charan and acquit them of the charges under sections 148, 302/149, 307/149, 325/149 and 323/149 IPC. Appellants Lekha, Hukam and Hari Charan are on bail, they need not surrender and their bail bonds stand discharged. Appellant Mohan Singh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) The impugned judgment of learned trial court stands modified as indicated above. (See separate judgment). (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/