Raghubir Singh vs State Of Rajasthan & Ors

2. As per the prosecution story, PW Prabhu Koli and his brothers had mortgaged 5 bighas of land comprising Khasra No. 250 to PW-1 Raghuveer Singh several years earlier to the incident. At about 2 p.m. on the 7th August 1997, Raghuveer Singh alongwith Chhotey Lal, Rajendra, Munshi and Girdhari were in the process of ploughing the land when the accused, Kallu, Kamru, Taiyab and Rahmat reached that place on two Crl. Appeal Nos.82- 83/2005 tractors and also 2 started ploughing the same land. Raghuveer Singh protested at this intrusion on which they attempted to run him over with their tractors. In the meanwhile, Asuddin, Mehboob, Mauj, Sohan Lal and Kamru armed with Farsis, Tanchias, Dantis and lathis attacked them and whereas Mauj and Asuddin inflicted blows with a Danti and Tanchia on the head of Girdhari, Kallu and Rahmat ran over him with their tractors, and when Raghuveer Singh attempted to intervene in favour of Girdhari, Asuddin, Taiyab and Kamruddin also caused blows to him with their weapons. Girdhari died on the spot whereas Chhotey Lal, Lallu, Rajendra and Munshi sustained serious injuries. Raghuveer Singh thereafter went to the Police Station and submitted a written report at 5.30 p.m. the same afternoon and on its basis a First Information Report was drawn up. On the completion of the investigation, the accused were charged under various provisions of the Indian Penal Code, they being inter-alia Sections 302 and 302/149, 307 and 307/149. The prosecution in support of its case relied on the evidence of 17 witnesses in all, the primary witnesses Crl. Appeal Nos.82- 83/2005 being PW-1 3 Raghuveer Singh, the first informant, PW-2 Rajendra Kumar, PW-3 Chhotey Lal, PW-4 Munshi Ram, PW-5 Lallu Ram, PW-6, Suresh Kumar and PW-7 Than Singh. The prosecution also relied on the statement of PW-14 Dr. Sanjay Gupta, who had conducted the autopsy on the dead body and had found 5 injuries thereon and also examined five of the witnesses aforementioned i.e. Raghuveer Singh, Rajendra Kumar, Chhotey Lal, Munshi and Lallu and found several injuries on their persons, some of them grievous in nature whereas from the side of the accused Taiyab, Kallu, Rahmat, Asuddin and Kamru were found to have been injured, though with simple injuries. In their statements recorded under Section 313 of the Cr.P.C. the accused denied their involvement simplicitor.

They did not lead any evidence in defence. The trial court relying on the aforesaid eye witnesses' account and the medical evidence convicted 7 of the 9 accused under Sections 302, 302/149, 307 and 307/149 etc. of the IPC and sentenced them to various terms of imprisonment under those provisions. The trial court, however, acquitted Mehboob Khan Crl. Appeal Nos.82- 83/2005 and Taiyab. The 7 4 accused who had been convicted by the trial court challenged their conviction by filing DB Criminal Appeal No. 796 of 1998 whereas the complainant PW Raghuveer Singh assailed the acquittal of Mehboob Khan and Taiyab Khan by filing D.B. Criminal Revision No. 188 of 1999. During the pendency of the appeal in the High Court, Rahmat passed away and the proceedings against him were disposed of as having abated.

(iv) Conviction of appellants Sohan Lal, Mauj Khan and Asuddin under Section 302/149,447,148,325/149 and 323/149 stands set aside and they are acquitted of the said charges. Their conviction under Section 324 IPC is however confirmed and they are sentenced to the period already undergone by them in confinement. Sohan Lal and Mauj Khan are on bail, they need not surrender and their bail bonds stand discharged. Appellant Asuddin, who is in jail, shall be set at liberty forthwith, if not required in any other case.

(v) Conviction of appellant Kamruddin under Sections 302/149,447,148,324/149 and 323/149 is set aside and he is acquitted of the said charges. His conviction under Section 325 IPC however stands confirmed and he is sentenced to the period already undergone by him in confinement. He is on bail, he need not surrender and his bail bonds stand discharged.

(vi) D.B.Criminal Revision No.188/1999 being devoid of merit stands dismissed.

Crl. Appeal Nos.82- 83/2005 11

The dead body and the cultivator were recovered from the house of PW-1, and PW-17 admitted that no blood stained earth had been lifted from the site. The judgment in Bhanwar Singh's case (supra) cannot be made applicable as it deals only with the scope of an offence under Section 149 of the IPC. In the light of the facts that have been enumerated above, it would be seen that the observations of the High Court that both sides had come to do battle appears to be justified as this is an assessment on an appreciation of the evidence which cannot be said to be palpably wrong so as to invite the Crl. Appeal Nos.82- 83/2005 intervention of this 14 Court. The observation in Gajanand's case (supra) that in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act.

The injury with the cultivator is injury No.1 which is the fatal injury and has been attributed by the witnesses to Kallu. Ms. Makhija has, however, argued that the story that the cultivator had first been lifted and then dropped on Girdhari could not be believed as Raghuveer Singh had not mentioned this fact in his evidence although the other witnesses had done so and as such, this story was improbable. Even assuming, however, that the cultivator had not been lifted and then dropped yet we find that injury No.1 had been caused with a cultivator is clear from the medical evidence and the extent and gravity of the injury shows that Kallu had the intention to cause Girdhari's Crl. Appeal Nos.82- 83/2005 death. It is also 16 clear from the evidence that injury No.1 was sufficient to cause death in the normal course of nature. The injuries attributed to the other three accused mentioned herein above were simple in nature and can, by no stretch of imagination, be said to have been the cause of death. In the light of the fact that we are dealing with a case of a free fight, Asuddin, Mauj and Rahmat must be made responsible for their respective injuries and Rahmat had, as a matter of fact, died while the matter was in the High Court. We are, therefore, of the opinion that in so far as Kallu respondent is concerned, his conviction under Section 304 Part II of the IPC even on the findings recorded by the High Court, was erroneous. We, accordingly, allow these appeals to the extent that Kallu is held guilty under Section 302 of the IPC for having caused the murder of Girdhari and we restore the judgment of the Trial Court to this limited extent. In so far as the other accused are concerned, the appeals are dismissed.

7. The fee of the Amicus Curiae is fixed at Rs.7,000/- in each appeal.