JUDGMENT
Sunil Kumar Garg, J.
1. Both the abovementioned two appeals are being decided by this common judgment as both relate to one incident that had occurred in the intervening night of 1-2/9.95.
FACTS OF D.B. CRIMINAL APPEAL No. 652/2000
2. The abovementioned accused appellants have preferred this appeal against the judgment and order dtd. 31.10.2000 passed by the learned Additional Sessions Judge, Raisinghnagar in Sessions Case No. 100/1995 by which he convicted and sentenced the accused appellants as under:
———————————————————————–
Name of accused Conviction Sentence awarded to
Appellants Under Section each accused appellant
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Bhagirath 302/149 I.P.C. Imprisonment for life
Ram Kumar and to Pay a fine of Rs.
Bega Ram 5000/- in default to
Net Ram further undergo 1 year's
Munshi Lal R.I.
Manphool
Narain Ram @ Ram
Narain
Mota Ram
-do- 307/149 I.P.C. 7 years' R.I. and to pay a
fine of Rs. 1000/- in
default to further
undergo 6 months' R.I.
-do- 148 I.P.C. 1 year's R.I. and a fine of
Rs. 500/- in default to
further undergo 1
month's R.I.
-do- 27 Arms Act 3 years' R.I. and a fine of
Rs. 500/- in default to
further undergo 1
month's R.I.
All the sentences were directed to run concurrently.
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3. It arises in the following circumstances:
i) That on 2.9.95 at about 6 a.m, P.W. 1 Indraj lodged a written report (Ex.P/1) before P.W. 15 Nilu Ram, ASI, Police Station Muklava, Dist. Sri Ganganagar against the present accused appellants inter alia stating that there was dispute in respect of contract of wine between his uncle Devi Lal (hereinafter referred to as the deceased) and his father Raja Ram (P.W.5) and for that a quarrel had taken place before and the matter was settled at one time. It was further stated in the report Ex.P/1 by P.W.1 Indraj that though compromise had taken place, still the accused appellants were pressing the deceased to leave the contract which was to be given to the accused appellant Bhagirath, but the same was not given by the contractors to Bhagirath. It was further stated in the report Ex.P/1 that in continuance of that dispute, a raid was conducted by the Department in the house of accused appellant Ram Kumar about 15 days back and thereafter the accused appellants were threatening to kill the deceased.
ii) That it was further stated in the report Ex.P/1 by P.W. 1 Indraj that on 1.9.1995, in the noon at about I’O clock, the accused appellants assembled before the house of the deceased armed with weapons, but since deceased was not there, they went away. It was further stated in the report Ex.P/1 that in the night of 2,9.1995 at about 1.45 a.m., the accused appellants armed with guns, pistols and Gandasis came to the house of the deceased and gave warning and at that time, the accused appellant Ram Kumar was armed with 12 bore gun and accused appellants Narayan, Bhagirath and Mota Ram were armed with pistols and the accused appellant Ram Kurnar with his 12 bore gun made a fire in the air and after hearing the noise of fire, the deceased came out from his house and the accused appellant Ram Kumar fired thrice with his 12 bore gun towards the deceased and pallets hit the deceased, as a result of which, he fell down on the ground.
iii) It was further stated in the report Ex.P/1 by P.W.1 Indraj that because of fear, he tried to run away towards his house, but the accused appellant Narayan fired with his 12 bore gun towards him and pallets hit him. It was further stated in the report Ex.P/1 that when he made hue and cry on which Om Prakash (P.W.2), Prem Chand (P.W.6) who were sons of the deceased came there and accused appellant Mota Ram with his 12 bore pistol fired towards them as a result of which P.W.2 Om Prakash and P.W.6 Prem Chand also received fire arm injuries.
iv) It was further stated in the report Ex.P/1 by P.W. 1 Indraj that thereafter P.W.5 Raja Ram (father of P.W.1 Indraj) also came there with his 12 bore gun and he also made fire in the air, thereupon from the side of accused appellants many fires were made and Om Prakash S/o Ganpat Ram and Narendra Singh came there and his elder brother Ram Pratap (P.W.3) also came there and thereafter the accused appellants went away. It was further stated in the report Ex.P/1 that thereafter the deceased was taken to Rai-Singh Hospital, but he died in the transit.
v) On this report (Ex.P/1), regular FIR Ex.P/64 was chalked out and thereafter investigation was got conducted by P.W. 17, Nathmal, SHO, Police Station Muklava and during investigation site plan Ex.P/4, description of site plan Ex.P/4A were got prepared and through Fard Ex.P/5 blood stained soil and through Ex.P/6 simple soil was got recovered and through Fard Ex.P/7, some pieces of 12 bore pallets were got recovered.
vi) During investigation, P.W.5 Raja Ram was got medically examined by P.W.9 Dr. Subhash Gupta and his injury report is Ex.P/29 and similarly, P.W.1 Indraj, P.W.2 Om Prakash and P.W.6 Prem Chand were also got medically examined by P.W.9 Dr. Subhash Gupta and their injury reports are Ex.P/36, Ex.P/45 and Ex.P/44 respectively and they were proved by P.W.9 Dr. Subhash Gupta and through Fard Ex.P/66, accused appellant Bega Ram was got arrested on 3.9.95 by P.W. 17 Nathmal. Through Fard Ex.P/67, accused appellant Bhagirath was got arrested on 3.9.95 by P.W. 17 Nathmal. Through Fard Ex.P/68, accused appellant Manphool was got arrested on 3.9.95 by P.W. 17 Nathmal. Through Fard Ex.P/69, accused appellant Ram Kumar was got arrested on 3.9.95 by P.W. 17 Nathmal. Through Fard Ex.P/70, accused appellant Netram was got arrested on 3.9.95 by P.W. 17 Nathmal. Through Fard Ex.P/71, accused appellant Munshi Lal was got arrested on 3.9.95 by P.W. 17 Nathmal. Through Fard Ex.P/84, accused appellant Mota Ram was got arrested on 14.12.95 by P.W. 17 Nathmal and through Fard Ex.P/85, accused appellant Ram Narayan alias Narayan Ramwas got arrested on 14.12.95 by P.W.17 Nathmal and on their information, guns, pistols and lathis were got recovered by P.W. 17 Nathmal.
vii) The post mortem of the body of the deceased was got conducted by a Board of three members and P.W. 18 Dr. Jagtar Singh who was one of the members of the Board was produced to prove the post mortem report Ex.P/102 of the deceased and as per the post mortem report (Ex.P/102), the deceased died of shock due to internal haemarrage caused by fire arm injuries to vital organs.
viii) After investigation challan was filed against the accused appellants in the court of learned Magistrate from where the case was committed to the Court of Sessions and the learned Additional Sessions Judge vide order dtd. 9.4.96 framed charges against the accused appellant Ram Kumar for offence under Sections 302, 307/149, 147 and 148 I.P.C. and Section 27 of the Arms Act and for offence under Sections 302/149, 307/149, 147 and 148 I.P.C. and Section 27 of the Arms Act against accused appellants Bega Ram, Net Ram and Munshi Ram and for offence under Sections 302/149,307,147 and 148 I.P.C. and Section 27 of the Arms Act against accused appellants Bhagirath, Manphool, Narayan Ram alias Ram Narayan and Mota Ram. The accused appellants pleaded not guilty and claimed trial.
ix) During trial 19 witnesses were examined on behalf of the prosecution and thereafter statement of accused appellants under Section 313 Cr.P.C. was recorded, but no witness was examined in defence.
x) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dtd. 31.10.2000 convicted and sentenced the accused appellants as stated above inter alia holding that it was a case of free fight and the deceased was killed by the accused appellant Ram Kumar and the learned Trial Court also came to the conclusion that the accused appellants were all members of unlawful assembly and therefore, he convicted all the accused appellants with the aid of Section 149 I.P.C.
xi) After being aggrieved by the judgment and order dtd. 31.10.2000 the accused appellants have preferred the present appeal.
4. In this appeal, the following submissions have been raised by the learned counsel for the accused appellants:
i) That since the learned trial Judge has himself come to the conclusion that it was a case of free fight, therefore, when there was free fight, invoking of provisions of Section 149 I.P.C. and thereafter convicting the accused appellants with the aid of Section 149 I.P.C. was erroneous one.
ii) That since injured persons received simple injuries, therefore, no case for offence under Section 307 I.P.C. should have been said to have been proved against the accused appellants and similarly since the prosecution has failed to establish that all accused appellants caused fire arm injuries and therefore, conviction of the accused appellants for offence under Section 307 I.P.C. with the aid of Section 149 I.P.C. was erroneous one and since all the fire arm injuries were simple, no offence under Section 307 I.P.C. was made out.
iii) That if the Court comes to the conclusion that Ram Kumar had fired towards the deceased and since it was a case of free fight, therefore, there was no intention on his part to murder the deceased and at the most, knowledge should be attributed on his part and his conviction should be altered from offence under Section 302 I.P.C. to Section 304 (II) I.P.C.
5. On the other hand, the learned P.P. has supported the judgment and order did. 31.10.2000 and submitted that the same are based on proper appreciation of evidence available on record and do not require any interference by this Court.
6. Heard and perused the record
7. Before proceeding further it may be stated that for the same incident, a cross case was also registered bearing FIR No. 97/95 on the report of the accused appellant Net Ram and the challan for offence under Section 307 I.P.C. read with Section 149 and 148 I.P.C. was also filed against Het Ram, Indraj (P.W. 1) and Om Prakash (P.W.2) and since the deceased had already died, and a case of one accused was sent to the children Court for trial, the challan was filed against the three accused persons, namely, Het Ram, Indraj (P.W.1) and Om Prakash (P.W.2) for committing offence under Sections 147, 148 and 307/149 I.P.C.
8. Before proceeding further medical evidence in this case has to be seen which is found in the statement of P.W. 18 Dr. Jagtar Singh who conducted the post mortem of the body of the deceased and P.W. 9 Dr. Subhash Gupta who examined P.W. 1 Indraj, P.W.2 Om Prakash, P.W.5 Raja Ram and P.W.6 Prem Chand.
9. P.W.18 Dr. Jagtar Singh has stated that on 2.9.95, he was medical officer, Primary Health Centre, Rai Singh Nagar and he conducted the post mortem of the dead body of the deceased and found following injuries :
i) Lacerated wound (fire arm) 2cm x 1.5 cm. x pleural cavity deep (oval shape) between 2nd and 3rd rib (intercastal space) on right side laceration of plura from left to right side in right lateral and downwards direction.
ii) Lacerated wound (fire arm) 1.8 cm. x 1.5 cm x pleural cavity deep (oval shape) 4 cm. Below left nipple and laceration of plura and laceration of left lung liver from left to right side in downwards direction.
iii) Lacerated wound (fire arm) 1.7 cm. x 1.2 cm x pleural cavity deep (oval shape) over the left side of chest 3 cm. Below the left nipple and 3 cm. Outer side of injury No. 2 to plura lower tube left lung diaphran – stomach and intestine laceration from left to right side in downward direction.
iv) Lacerated wound (fire arm) 1 cm x 1 cm (Round) cavity deep right hypochondria from the middle line of the body and 7 cm. Above umbilicus. Lacerated to ant abdominal wall and intestine. From front to back side at right angle.
v) Lacerated wound (fire arm) 1 cm. x 1 cm (round) cavity deep, right lumber, region 4 cm. Away from middle line and 2.5 cm. Above the umbilicus, lacerated to ant abdominal wall – pentanium – intestine from front to back side at right angle.
vi) Lacerated wound (fire arm) 1 cm x .5 cm. x 1 cm right ant superior iliac suprini
vii) Lacerated wound (fire arm) .5″cm x .4cm. x muscle deep 4 cm above the injury No. 6
viii) Lacerated wound (fire arm) .5 cm x 0.4 cm. x 0.3 cm. On front side right shoulder
ix) lacerated wound (fire arm) 0.5 cm. x 0.4 cm. x muscle deep over the lateral side of right shoulder.
x) Lacerated wound (fire arm) 1 cm. x 0.5 cm. X bone deep over the post aspect in the middle hand.
xi) Lacerated wound (fire arm) 1 cm x 0.5 cm. X muscle deep over the lateral aspect of lower 1/2 of left forearm
All above fire arm wounds are wound of entrance, there is no scorching/burning/smoke/powder marks/tattooing of the skin.
xii) Abrasion over the left castal region 4 cm. No size 1.5 x 0.5, 1 cm. x 0.5 cm, 2 cm. x 0.5 cm having shape, simple blunt.
xiii) Abrasion 2 cm. x 0.5 cm. Over right castal region simple blunt.
xiv) Abrasion 3 cm. x 0.5 cm. Over the anterolaterial side of upper 1/2 of the right arm.
xv). lacerated wound – 5 cm. x 2 cm. x 0.5 cm. Over the middle of radial side of left forearm – simple blunt.
xvi) abrasion – 0.5 cm. x 0.3 cm. over left ankle in front side simple blunt.
xvii) Abrasion – 0.5 cm. x 0.4 cm. Over the lateral side of lower 1/3 of left leg simple blunt.
All above injuries are ante mortem in nature.
9. P.W. 18 Dr. Jagtar Singh has proved the post mortem report (Ex.P/102) and has opined that the cause of death was shock due to internal haemarrage caused by fire arm injuries.
10. Thus, from the statement of P.W. 18 Dr. Jagtar Singh the fact that injuries No. 1 to 11 were fire arm injuries and deceased died because of fire arm injuries and further these injuries were sufficient in the ordinary course of nature to cause death is well established. Hence, death of the deceased was not natural one, but it was homicidal.
11. Hence, from the statement of P.W. 18 Dr. Jagtar Singh, the fact that death of the deceased was caused by fire arm injuries is well established.
12. P.W.9 Dr. Subhash Gupta examined P.W. 1 Indraj and he has proved his injury report (Ex.P/36). He has further stated that P.W.1 Indraj received 7 fire arm injuries on his person. For the injuries mentioned in injury report Ex.P/36 of P.W.1 Indraj, he advised x-ray and after seeing the x-ray report (Ex.P/37), he came to the conclusion that injuries, which were mentioned in injury report Ex.P/36 of P.W.1 Indraj, were fire arm injuries of simple nature. Thus, from the statement of P.W.9 Dr. Subhash Gupta, the fact that P.W. 1 Indraj received simple fire arm injuries as mentioned in injury report Ex.P/36 has been established.
13. P.W.9 Subhash Gupta also examined P.W.5 Raja Ram and he has proved his injury report (Ex.P/29). He has stated that P.W.5 Raja Ram received six fire arm injuries on his person. He has further stated that for the injuries mentioned in Ex.29 he advised x-ray and after seeing the x-ray report (Ex.P/30), he came to the conclusion that six injuries which were mentioned in the injury report Ex.P/29 were fire arm injuries of simple nature. Thus, from the statement of P.W.9 Dr. Subhash Gupta, the fact that P.W.5 Raja Ram received simple fire arm injuries as mentioned in injury Ex.P/29 has been established.
14. P.W.9 Dr. Subhash Gupta also examined P.W.6 Prem Chand and he has proved his injury report (Ex.P/44). He has stated that P.W.6 Prem Chand received seven fire arm injuries. He has further stated that for the injuries mentioned in Ex.P/44 he advised x- ray and after seeing the x-ray report, he came to the conclusion that injuries which were mentioned in the injury report Ex.P/44 were fire arm injuries of simple nature. Thus, from the statement of P.W.9 Dr. Subhash Gupta, the fact that P.W.6 Prem Chand received simple fire arm injuries as mentioned in the injury report Ex.P/44 has been established.
15. P.W.9 Dr. Subhash Gupta also examined P.W.2 Om Prakash and he has proved his injury report (Ex.P/45). He has stated that P.W.2 Om Prakash received from fire arms injuries on his person. He has further stated that for the injuries mentioned in the injury report Ex.P/45 he advised x-ray and after seeing the x-ray report (Ex.P/46), he came to the conclusion that injuries which were mentioned in the injury report Ex.P/45 were fire arm injuries of simple nature. Thus, from the statement of P.W.9 Dr. Subhash Gupta, the fact that P.W.2 Om Prakash received simple fire arm injuries as mentioned in the injury report Ex.P/45 has been established.
16. Before proceeding further it may be stated that since there was a cross case and incident was the same, therefore, some of the accused appellants also received injuries and it would be relevant to mention here the injuries received by some of the accused appellants.
17. P.W.9 Dr. Subhash Gupta has stated that on 2.9.1995 he examined accused appellant Net Ram and he has proved his injury report Ex.D/4 and same was admitted by the prosecution and a bare perusal of injury report Ex.D/4 further reveals that he received six simple fire arm injuries.
18. P.W.9 Dr. Subhash Gupta has further stated that on 2.9.1995 he examined accused appellant Ram Kumar and he has proved his injury report Ex.D/5 and same was admitted by the prosecution and a bare perusal of injury report Ex.D/5 further reveals that he received six simple fire arm injuries.
19. The next question which arises for consideration is whether findings of the learned Trial Court that it was a case of free fight are correct one or not.
20. There is no dispute in this case that from the side of the complainant in this case, Devilal had died and further more P.W.1 Indraj, P.W.2 Om Prakash, P.W.5 Raja Ram and P.W.6 Prem Chand received injuries and the injuries of the above persons were all fire arm injuries of simple nature and further more, two accused appellants Ram Kumar and Net Ram also received fire arm injuries, meaning thereby that from both the sides, guns and pistols were used.
21. Before coming to the conclusion whether there was free fight or not what the word “free fight” means has to be seen.
22. The Hon’ble Supreme Court in the famous case of Gajanand v. State of Uttar Pradesh, AIR 1954 SC 695, has explained and defined the word “free fight” in a very beautiful words in the following manner:
“A free fight is when both sides mean to fight from the start, go out to fight and there is piched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders. When one party after preparation and armed with deadly weapon went to the other party’s house, it could not be said in these circumstances that both the parties were pre- determined for a trial of strength and had a free fight, rather the first party was the aggressor.”
23. Thus, it can be said that a free fight is one when both sides mean to fight from the start.
24. When there is a free fight, following results would ensue:
i) Every assailant would be accountable for the individual act performed by him for that law laid down by the Hon’ble Supreme Court in the case of Kanbi Nanji Virji and Ors. v. State of Gujrat, AIR 1970 (SC) 219, may be referred to in which the Hon’ble Supreme Court has observed as under:
“Where there was a melee at the time of the 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 only those persons who are proved to have caused injuries or death can be held guilty for the offence individually committed by them”.
ii) In a case of free fight, question of conviction with the aid of Section 149 I.P.C. does not arise and for that law laid down by the Hon’ble Supreme Court in the case of Puran v. State of Rajasthan, AIR 1976 (SC) 912, may be referred to in which the Hon’ble Supreme Court has observed as under:
“In a case of sudden mutual fight between the two parties, there can be no question of invoking the aid of Section 149 for the purpose of imposing constructive criminal liability on accused. The accused in such a case the convicted only for the injuries caused by him by his individual acts.”
iii) No right of private defence is available in the case of free fight and for that law laid down by the Hon’ble Supreme Court in the case of Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 (SC) 414, may be referred to in which the Hon’ble Supreme Court has observed as under:
“(C) Penal Code (1860) Section 96-Right of private defence – Free fight-No right of private defence is available to either party and each individual is responsible for his own acts.”
iv) The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival commanders, for that there is an old ruling Ahmad Sher v. Emperor, AIR 1931 Lah. 513, and the law laid down in Ahmad Sher (supra), was approved by the Hon’ble Supreme Court in the case of Abdul Hamid v. State of U.P., (1991) 1 SCC 339.
25. Before proceeding further something should be said about sudden fight.
26. The word “sudden fight” has been defined by the Hon’ble Supreme Court in the case of Mariadasan and Ors. v. State of Tamil Nadu, AIR 1980 (SC) 573, wherein the word “sudden fight” has been defined in the following manner:
“Sudden fight- When no party attacks the members of the opposite party at the commencement of the occurrence and there is no evidence regarding formation of unlawful assembly with a particular common object and the fight takes place as a result of heated passion and without premeditation, it can be said to be a “sudden fight”. No unlawful assembly can be said to have been formed in such cases and the accused cannot be convicted under this Section All the persons must be held responsible for their individual acts and not vicariously liable for acts of others.”
27. The Hon’ble Supreme Court in the case of Mariadasan (supra), has further held that even in sudden fight which had taken place on spur of moment, the accused cannot be convicted under Section 147, 148 or Section 149 I.P.C.
28. It may further be stated that in case of group rivalry and emnity, it often happens that there is a general tendency to rope in as many persons as possible as having participated in the assault. To avoid this eventuality, in case of free fight, the law has been laid down that persons who caused injuries would be liable.
29. Since in the present case, P.W. 1 Indraj, P.W.2 Om Prakash, P.W.5 Raja Ram and P.W.6 Prem Chand are injured witnesses, therefore, their presence at the scene cannot be doubted.
30. A bare’ perusal of the report Ex.P/1 submitted by P.W. 1 Indraj reveals that the dispute between the complainant party and the accused party was going on for grant of contract of wine and earlier to present incident, incident had already taken place and compromise had also taken place and even on 1.9.1995, the accused party assembled at the house of the deceased, but with no success, but in the night of 2.9.1995, there were fires from both the sides as according to P.W. 1 Indraj, P.W.5 Raja Ram after hearing noise of fire came with his gun and since in this case, two of the accused appellants Ram Kumar and Net Ram also received injuries, therefore, to say that no fire arm was used from the side of the complainant party cannot be accepted and hence, the findings of the learned trial Judge that fire arms were used from both the sides are liable to be confirmed one. In this respect, statement of P.W. 17 Nathmal IO may be referred who has stated that during the course of investigation, he did not come to the conclusion that which party was aggressor and therefore, he filed challan against the complainant party as well as against accused appellants.
31. There is no dispute on the point that there is S. B. Criminal Appeal No. 637/2000 arising from the cross case in which P.W. 2 Om Prakash of the present case has been convicted for offence under Section 307 I.P.C. while other two persons, namely, P.W.5 Raja Ram and Het Ram were acquitted and thus, when this being the position, to say that which party was aggressor cannot be established and when this being the position, when fire arms were used in the night from both the sides, then it can easily be said that both the parties were pre-determined for a trial of strength and had a free fight and thus, the findings of the learned Trial Judge that it was a case of free fight are liable to be confirmed one.
32. As already stated above, when there is free fight, no one can be convicted under Section 148 I.P.C. or with the aid of Section 149 I.P.C. and since the learned Additional Sessions Judge has convicted the accused appellants for offence under Sections 148 as well as with the aid of Section 149 I.P.C., therefore, these findings are erroneous one and palpably wrong and against the well settled principles of law and are liable to be set aside and thus, it is held that the accused appellants are entitled to acquittal for offence under Section 148 I.P.C. and no accused appellants would be convicted with the aid of Section 149 I.P.C. and each would be responsible for the injuries caused by each accused appellant.
CASE OF DECEASED DEVILAL V. ACCUSED APPELLANT RAM KUMAR
33. There is no dispute on the point that from the statement of P.W.1 Indraj, P.W.2 Om Prakash and other evidence, it is established that the deceased died because of gun shot injuries fired by the accused appellant Ram Kumar and therefore, the prosecution has established its case that fire arm injuries which were found on the body of the deceased were caused by the accused appellant Ram Kumar.
34. The next question which arises for consideration is whether he was rightly convicted for offence under Section 302 I.P.C. or not.
35. In this case, the deceased had received as many as 11 fire arm injuries on his body as is apparent from the post mortem report (Ex.P/102) and as per the statement of P.W.1 Indraj (injured witness), Ram Kumar (accused appellant) fired three shots towards the deceased and these injuries as per the statement of P.W. 18 Dr. Jagtar Singh were sufficient in the ordinary course of nature to cause death and thus, the accused appellant Ram Kumar was rightly found guilty of causing murder of the deceased and in our considered opinion, his case would not fall under Section 304 Part I or part II I.P.C. as intention to murder the deceased can be gathered from the nature of injuries, and nature of weapon used and since in the present case 12 bore gun was used by the accused appellant Ram Kumar which is a dangerous weapon, no intention except to murder the deceased can be gathered and hence the injuries which were caused by the accused appellant Ram Kumar over the body of the deceased were caused by him with an intention to murder him. Third clause of Section 300 I.P.C. makes it clear that if an act is done with an intention of causing bodily injury to any person and such injury is found sufficient in the ordinary course of nature to cause death, the offence would be culpable homicide amounting to murder punishable under Section 302 I.P.C. and therefore from every point of view the act done by the accused appellant Ram Kumar in murdering the deceased with 12 bore gun would be covered by phrase “murder” which is punishable under Section 302 I.P.C.
36. For the reasons mentioned above, the accused appellant Ram kumar is to be convicted for offence under Section 302 I.P.C. in place of Section 302/149 I.P.C. and the argument of the learned counsel for the accused appellants that case of Ram Kumar falls within the purview of Section 304(11) I.P.C. stands rejected. Since in case of free fight, no one can be convicted for offence under Section 148 I.P.C. and with the aid of Section 149 I.P.C., therefore, he is entitled acquittal for offence under Section 148 and Section 307/149 I.P.C., but his conviction for offence under Section 27 of the Arms Act is to be maintained.
INJURIES OF P.W.1 INDRAJ V. RAM NARAIN ALIAS NARAIN RAM
37. Injury report of P.W. 1 Indraj is Ex.P/36 which shows that he received seven simple fire arm injuries. P.W.1 Indraj In his statement has clearly stated that the accused appellant Ram Narayan alias Narayan Ram caused fire arm injuries by 12 bore gun towards him and thus, for the injuries of P.W. 1 Indraj, accused appellant Ram Narayan alias Narayan Ram is held responsible.
38. The next question is whether by causing these injuries to P.W. 1 Indraj, the accused Ram Narayan alias Narayan Ram has committed offence under Section 307 I.P.C. or not.
39. The Hon’ble Supreme Court in the case of Hari Kishan v. State of Haryana, AIR 1988 (SC) 2127, has observed that where the fight is accidental owing to sudden quarrel, conviction under Section 307 I.P.C. is generally not called for Apart from this, in this case, since injuries of P.W.1 Indraj were simple in nature and there was free fight and and thus, by causing simple injuries to P.W.1 Indraj, the accused appellant Ram Narayan alias Narayan Ram has committed the offence under Section 324 I.P.C. and not under Section 307 I.P.C. and therefore, the findings in this respect are liable to be modified accordingly and the accused appellant Ram Narayan alias Narayan Ram is liable to be convicted for offence under Section 324 I.P.C. in place of Section 307/149 I.P.C. Since it was a case of free fight, the accused appellant Ram Narayan alias Narayan Ram is to be acquitted for offence under Sections 148 and 302/149 I.P.C. as he had not caused any injury to the deceased, but his conviction for offence under Section 27 of the Arms Act is liable to be upheld.
INJURIES OF P.W. 2 OM PRAKASH V. ACCUSED APPELLANT MOTA RAM
40. Injury report of P.W.2 Om Prakash is Ex.P/45 which shows that he received five simple fire arm injuries. In his statement, P.W.2 Indraj has clearly stated that the accused appellant Mota Ram caused fire arm injuries by pistol towards him and thus, for the injuries of P.W.2 Om Prakash, accused appellant Mota Ram is held responsible.
41. The next question is whether by causing these injuries to P.W.2 Om Prakash, the accused appellant Mota Ram had committed offence under Section 307 I.P.C. or not.
42. Since while dealing with the case of Ram Narain alias Narain Ram it was found that by causing simple fire arm injuries, no case under Section 307/149 I.P.C. was made out, thus, on the same reasoning, it is held that accused appellant Mota Ram has also committed offence under Section 324 I.P.C. in place of Section 307/149 I.P.C. in causing simple fire arm injuries to P.W.2 Om Prakash and therefore, the findings in this respect are liable to be modified accordingly and the accused appellant Mota Ram is liable to be convicted for offence under Section 324 I.P.C. in place of Section 307/149 I.P.C. Since it was a case of free fight, the accused appellant Mota Ram is to be acquitted for offence under Sections 148 and 302/149 I.P.C. as he had not caused any injury to the deceased, but his conviction for offence under Section 27 of the Arms Act is to be maintained.
INJURIES OF P.W.5 RAJA RAM, WHO CAUSED
43. After perusing the statement of P.W.1, Indraj, P.W.2 Om Prakash and P.W.6 Prem Chand, it does not appear as to who caused injuries to P.W.5 Raja Ram and therefore, nobody could be held responsible for causing injuries to P.W.5 Raja Ram.
INJURIES OF P.W.6 PREM CHAND V. ACCUSED APPELLANTS BHAGIRATH AND MOTA RAM
44. Injury report of P.W.6 Prem Chand is Ex.P/44 which shows that he received seven simple fire arm injuries. In his statement, P.W.6 Prem Chand has clearly stated that the accused appellant Mota Ram and Bhagirath caused fire arm injuries to him and thus, for the injuries of P.W.6 Prem Chand, accused appellants Mota Ram and Bhagirath are held responsible.
45. The next question is whether by causing these injuries to P.W.6 Prem Chand, the accused appellant Mota Ram and Bhagirath had committed offence under Section 307 I.P.C. or not.
46. Since while dealing with the cases of Ram Narain alias Narain Ram and Mota Ram it was found that by causing simple fire arm injuries, no case under Section 307/149 I.P.C. was made out, thus, on the same reasoning, it is held that accused appellants Bhagirath and Mota Ram have also committed offence under Section 324 I.P.C. in place of Section 307/149 I.P.C. in causing simple fire arm injuries to P.W.6 Prem Chand and therefore, the findings in this respect are liable to be modified accordingly and the accused appellants Bhagirath and Mota Ram are liable to be convicted for offence under Section 324 I.P.C. in place of Section 307/149 I.P.C. since it was a case of free fight, the accused appellants Bhagirath and Mota Ram are to be acquitted for offence under Sections 148 and 302/149 I.P.C. as they have not caused any injury to the deceased, but their conviction for offence under Section 27 of the Arms Act is to be maintained.
47. Thus, the result of the above discussion maybe summarized in the following manner:
ACCUSED APPELLANT No. 1 BHAGIRATH
48. Accused appellant Bhagirath is to be acquitted of the charges for offences under Sections 148 and 302/149 I.P.C. and in place of Section 307/149 I.P.C. he is to be convicted for offence under Section 324 I.P.C. However, his conviction for offence under Section 27 of the Arms Act is to be maintained.
ON POINT OF SENTENCE
49. On point of sentence, looking to the entire facts and circumstances of the case and the facts the alleged incident took place in the year 1995 and about 9 years have passed since then and that period is sufficient to exhaust anybody mentally, physically and economically and it would not be proper now to send him to jail and looking to the fact that the accused appellant Bhagirath has remained in custody from 14.12.1995 to 12.1.1996 and from 31.10.2000 to 4.5.2001, therefore, it would be just and proper to reduce the sentence of the accused appellant Bhagirath to the period already undergone by them for offence under Section 324 I.P.C. and Section 27 of the Arms Act.
ACCUSED APPELLANT No. 2 RAMKUMAR
50. Accused appellant Ram kumar is to be acquitted of the charges for offence under Sections 148 and 307/149 I.P.C. and in place of Section 302/149 I.P.C. he is to be convicted simplicitor for offence under Section 302 I.P.C. However, his conviction for offence under Section 27 of the Arms Act is to be maintained.
ON POINT OF SENTENCE
51. For the offence under Section 302 I.P.C. as well as Section 27 of the Arms Act, the sentence of accused appellant Ram Kumar as recorded by the learned Additional Sessions Judge through order dtd. 31.10.2000 is to be maintained.
ACCUSED APPELLANT No. 3 BEGA RAM, No. 4 NET RAM, No. 5 MUNSHI LAL AND NO. G MANPHOOL
52. Accused appellants Bega Ram, Net Ram, Munshi Lal and Manphool are to be acquitted of all the charges for offence under Sections 302/149, 148 and 307/149 I.P.C. and Section 27 of the Arms Act.
ACCUSED APPELLANT No. 7 AND 8 NARAIN RAM ALIAS RAM NARAIN AND MOTA RAM
53. Accused appellants Narain Ram alias Rant Narain and Mota Ram are to be acquitted of the charges for offences under Sections 148 and 302/149 I.P.C. and in place of Section 307/149 I.P.C. they are to be convicted for offence under Section 324 I.P.C. However, their conviction for offence under Section 27 of the Arms Act is to be maintained.
ON POINT OF SENTENCE
54. On the same reasoning, which has been given while dealing the case of accused appellant Bhagirath on the point of sentence, it would be just and proper to reduce the sentence of the accused appellant Narain Ram and Mota Ram to the period already undergone by them.
For the reasons mentioned above, the appeal filed by accused appellants No. 3 to 6, namely, Bega Ram, Net Ram, Munshi Lal and Manphool respectively is allowed and impugned judgment and order dtd. 31.10.2000 passed by the learned Additional Sessions Judge, Raisingh Nagar are quashed and set aside qua accused appellant Bega Ram, Net Ram, Munshi Lal and Manphool and they are acquitted of all the charges for offence under Sections 302/149, 148 and 307/149 I.P.C. and Section 27 of the Arms Act.
Since accused appellants Bega Ram, Net Ram, Munshi Lal and Manphool are on bail, they need not surrender. Their bail bonds are hereby cancelled.
The appeal filed by the accused appellants No. 1, 7 and 8, namely, Bhagirath, Narain Ram alias Ram Narain and Mota Ram is partly allowed in the manner that they are acquitted of the charges for offence under Section 302/149 and 148 I.P.C. and judgment and order dtd. 31.10.2000 passed by the learned Additional Sessions Judge, Raisinghnagar are quashed and set aside to the above extent qua accused appellants Bhagirat Ram, Narain alias Ram Narain and Mota Ram and in place of Section 307/149 I.P.C., they are convicted for offence under Section 324 I.P.C. but their conviction for offence under Section 27 of the Arms Act is maintained.
While setting aside the order of sentence dtd. 31.10.2000 passed by the learned Additional Sessions Judge, Raisinghnagar for offence under Section 307/149 I.P.C. and Section 27 of the Arms Act qua accused appellants Bhagirath, Narain Ram alias Ram Narain and Mota Ram, for the offence under Sections 324 I.P.C. and Section 27 of the Arms Act, the accused appellants Narain Ram alias Ram Narain, Mota Ram and Bhagirath are sentenced to the period already undergone by them.
Since accused appellants, Bhagirath, Ram Narain alias Narain Ram, and Mota Ram are on bail, they need not surrender. Their bail bonds are hereby cancelled.
The appeal filed by the accused appellant Ram Kumar is partly allowed in the manner that he is acquitted of the charges for offence under Section 148 and 307/149 I.P.C. and judgment and order dtd. 31.10.2000 passed by the learned Additional Sessions Judge, Raisinghnagar to the above extent are quashed and set aside qua the accused appellant Ram Kumar and in place of Section 302/149 I.P.C. lie is convicted for offence under Section 302 I.P.C., but, his conviction for offence under Section 27 of the Arms Act is maintained.
However, on point of sentence for offence under Section 302 I.P.C. and Section 27 of the Arms Act, the appeal filed by the accused appellant Ram Kumar is dismissed and for offence under Section 302 I.P.C. and for offence under Section 27 of the Arms Act, his sentence as recorded by the learned Additional Sessions Judge, Raisinghnagar through order dtd. 31.10.2000 is maintained.
The judgment and order dtd. 31.10.2000 passed by the learned Additional Sessions Judge, Rai Singh Nagar stand modified to the above extent in respect of all the accused appellants.
S.B. CRIMINAL APPEAL No. 637/2000
55. This appeal has been filed by the accused appellant Om Prakash against the judgment and order dtd. 31.10.2000 passed by the learned Additional Sessions Judge, Rai Singh Nagar, in Sessions Case No. 23/1996 by which the learned Additional Sessions Judge convicted the accused appellant as under:
————————————————————–
Name of accused Offence Sentence awarded
Appellant Under Section
--------------------------------------------------------------
Om Prakash 307 I.P.C. 7 years' R.I. and to pay a
fine of Rs. 1000/- in
default to further
undergo 6 months' R.I.
" 148 I.P.C. 1 year's R.I. and to pay a
fine of Rs. 500/- in default
to further undergo 1
month's R.I.
" 27 Arms Act 3 year's R.I. and to pay a
fine of Rs. 500/-in default
to further undergo 1
month's R.I.
--------------------------------------------------------------
56. By the same judgment and order, the learned Additional Sessions Judge acquitted the accused Raja Ram and Het Ram for the charges for offences under Section 307 and 148 I.P.C. and Section 27 of the Arms Act.
57. Since, it was a cross case and there is no dispute on the point that accused appellant Om Prakash also received fire arm injuries and the injuries received by Net Ram and Ram Kumar were found to be simple in nature, therefore, on the same reasonings which have been discussed in D.B. Criminal Appeal No. 652/2000, the accused appellant Om Prakash is liable to be convicted for offence under Section 324 I.P.C. in place of Section 307 I.P.C. and he is to be acquitted for offence under Section 148 I.P.C. However, his conviction for offence under Section 27 of the Arms Act is to be maintained.
ON POINT OF SENTENCE
58. On point of sentence, looking to the entire facts and circumstances of the case and the facts the alleged incident took place in the year 1995 and about 9 years have passed since then and that period is sufficient to exhaust anybody mentally, physically and economically and it would not be proper now to send the accused appellant to jail and looking to the fact that the accused appellant Om Prakash has remained in custody from 26.12.1995 to 6.1.1996 and from 31.10.2000 to 16.12.2000, therefore, it would be just and proper to reduce the sentence of the accused appellant Om Prakash to the period already undergone by him for offence under Section 324 I.P.C. and Section 27 of the Arms Act.
For the reasons mentioned above, the appeal filed by the accused appellant Om Prakash is partly allowed and he is acquitted for offence under Section 148 I.P.C. and in place of Section 307 I.P.C., he is convicted for offence under Section 324 I.P.C. However, his conviction for offence under Section 27 of the Arms Act is maintained.
For the offence under Sections 324 I.P.C. and Section 27 of the Arms Act, the accused appellant Om Prakash is sentenced to the period already undergone by him.
Since accused appellant Om Prakash on bail, he need not surrender. His bail bonds are hereby cancelled.
The judgment and order dtd. 31.10.2000 passed by the learned Additional Sessions Judge, Rai Singh Nagar stands modified to the above extent.