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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
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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,
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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
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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,
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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
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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.
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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
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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
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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:
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Section 299 Section 300
A person commits culpable homicide Subject to certain exceptions
if the act by which the death is culpable homicide is murder if the
caused is done…. act by which the death caused is
done….
INTENTION
(a) with the intention of causing (1) with the intention of causing
death; or death; or
(b) with the intention of causing such (2) with the intention of causing such
bodily injury as is likely to cause bodily injury as the offender knows
death; or 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 (4) with the knowledge that the act is
likely to cause death. 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
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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
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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.
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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
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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
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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)
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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
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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
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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