JUDGMENT
Shiv Kumar Sharma, J.
1. While, the accused party was in settled possession over agricultural land, the complainant party went to the land and prevented the accused party from ploughing the land. Two groups then indulged in a free fight resulting in the death of Sua and Peeru. The appellants, six in number, along with nine co-accused persons, were put to trial before learned Additional Sessions Judge (Fast Track) No. 2, Ajmer Camp Beawar, who vide dated January 12, 2006 convicted and sentenced the appellants as under:
Appellant Babu, Najir, Nijam, Ratan, Natha and Nahra @ Nara:
Under Section 302/149 I.P.C.:
Each to suffer imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 148 I.P.C.:
Each to suffer rigorous imprisonment for one year.
Under Section 325/149 I.P.C.:
Each to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer rigorous imprisonment for three months.
Under Section 323/149 I.P.C.:
Each to suffer rigorous imprisonment for six months.
The substantial sentences were ordered to run concurrently.
2. The incident occurred on June 17, 2001 at 10 a.m. Investigation under Section 147, 148, 302, 307, 447, 336 and 149 I.P.C. commenced by the Police Station Sadar Beavvar on the Parcha Bayan (Ex.P/55) of injured Salim (PW-15) who was admitted in Amrit Kaur Hospital Beawar 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. 2, Ajmer Camp Beawar. Charges under Sections 447, 147, 148, 302/149, 307/149, 325/149 and 323/149. I.P.C. were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 Cr.P.C., the appellants claimed innocence. Two witnesses in support of their defence were examined. Learned trial Judge on hearing final submissions, while acquitting nine accused persons, convicted and sentenced the appellants as indicated hereinabove.
We have heard learned Counsel for the appellants and learned Public Prosecutor and with their assistance scanned the material on record.
3. Death of Sua was undeniably homicidal in nature. Vide Post-Mortem Report (Ex.P/46) following injuries were found on dead body:
1. Lacerated 1-1/4 x 1/8 x Bone deep at Rt. side & forehead.
2. Lacerated 5″ x 1/4″ x Bone deep at left parietal region.
3. Lacerated 2-1/2″ x 1/4 x Bone deep at left parietal occipital region.
4. contusion 2″ x1″ at lower 1/3rd Right forearm.
5. Lacerated 1/2 x 1/8 x muscle deep left elbow region.,
6. Contusion 2-1/2 x 3/4 at mid 1/3rd left forearm.
7. Lacerated 1-1/2 x 1/4 x 1/8 at mid 1/3rd of left leg,
8. Lacerated 3/4 x 1/4 x bone deep at lower 1/3rd of left leg (ant.)
9. Contusion 3″ x 1-1/4″ at left side of chest (Lateral)
10. Lacerated 1-1/2 x 1/4 x 1/4 at lower 2/3 at left leg (Lateral)
In the opinion of Dr. Hemant Kumar (PW-13) the cause of death was head injury leading to extra dural hemorrhage.
4. Death of Peeru was also homicidal. vide Post-Mortem Report (Ex.P/47) following injuries were found on dead body:
1. Lacerated 1-1/4″x 1/8 x Muscle deep at nose & External to forehead.
2. Lacerated 3/4″ x 1/8″ x 1/8 at left palm (base of left thumb).
3. Lacerated 3/4 x 1/4 x Bone deep at upper 1/3rd of left leg.
4. Contusion 1-1/2″ x 3/4″ at upper 1/3rd of left leg.
5. Abrasion 3/4 x 1/2 at mid 1/3rd left leg.
6. Abrasion 3/4 x 1/2 at lower 1/3rd of left leg.
7. Lacerated 3/4 x 1/4 x Bone deep at mid 1/3rd of right leg.
8. Abrasion 1/2 x 1/2 at left knee.
9. Lacerated 3-1/2 x 1/4 x Bone deep at right parietal region.
10. Lacerated 1-1/2 x 1/4 x Bone deep at left parietal region.
11. Contusion 2-1/2 x 1″ at lateral Infra scapular region.
In the opinion of Dr. Hemant Kumar (PW-13) the cause of death was coma by shock at hemorrhage. At this juncture the injuries sustained by appellants Natha, Ratan and Nazir in the same incident may also be noticed. As per the testimony of Dr. Hemant Kumar Chauhan (DW-1) the injuries of all the three appellants, who got admitted in Trauma Ward of Amrit Kaur Hospital, were examined vide injury reports Ex. D/1, Ex. D/2 and Ex.D/3. Natha and Ratan had sustained lacerated wounds on frontal parietal regions.
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5. Having analysed ocular and documentary evidence we notice that complainant party and accused party had no previous enmity and 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 Sua and Peeru. Members of complainant party were also armed with weapons and in the fight appellants Natha and Ratan sustained lacerated wounds on the head. The prosecution witnesses did not explain these injuries received by appellants Natha and Ratan. 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 death can be held guilty for the offence individually committed by them. In the instant case injuries on the person of deceased Sua and Peeru have been attributed to appellants Babu and Natha who have been proved to be in actual possession of the land and were sought to be dispossessed by the complainant party who trespassed on their land armed with lathis. The appellants, therefore, would undoubtedly have a reasonable apprehension of hurt being caused to them and were therefore, entitled to defend their person and property, in exercise of their right of private defence. A large number of injuries on the deceased clearly shows that the appellants have exceeded their right of private defence. Their case is, therefore completely taken out of the purview of Section 302 I.P.C. and falls within Exception 2 to Section 300 I.P.C. In view of finding that the appellants exceeded their right of private defence, the common object with which they were charged failed and their conviction under Section 148/149 I.P.C. could not be sustained.
6. In Kambi Nanji v. State of Gujarat 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.
In Munir Khan v. State of U.P. 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 I.P.C.
7. In the ultimate analysis we find that the prosecution is able to establish that appellants Babu and Natha exceeded their right of private defence in causing serious injuries on the person of deceased Sua and Peeru. The case against Babu and Natha, therefore, clearly fell within Exception 2 to Section 300 I.P.C. and they are guilty for having committed offence of culpable homicide not amounting to murder punishable under Section 304 Part-I I.P.C. The prosecution however could not establish charges against appellants Najir, Nijam, Ratan and Nahra @ Nara beyond reasonable doubts.
8. For these reasons, we dispose of instant appeals in the following terms:
(i) We allow the appeals of appellants Najir S/o Natha, Nijam S/o Natha, Ratan S/o Natha and Nahra @ Nara S/o Lumb’a and acquit them of the charges under Sections 302/149,148,325/149 and 323/149 I.P.C. All these appellants are on bail, they need not surrender and their bail bonds stand discharged.
(ii) We partly allowed the appeal of appellants Babu S/o Nara and Natha S/o Lumba and instead of Section 302/149 we convict them under Section 304 Part-I I.P.C. and sentence each to them to suffer rigorous imprisonment for ten years and fine of Rs. 2,000/-in default to further suffer one year rigorous imprisonment. We however acquit them of the charges under Sections 148, 325/149 and 323/149 I.P.C.
(iii) The impugned judgment of learned trial Court stands modified as indicated above.