JUDGMENT
Shiv Kumar Sharma, J.
1. The appellants, nine in number, were the accused on the file of learned Additional Sessions Judge No. 2, Jaipur District Jaipur in Sessions Case No. 108/1996. The learned trial Judge vide judgment dated July 31,1999 convicted and sentenced the appellants as under:-
Ibrahim Khan:
Under Section 148 IPC:
To suffer Rigorous Imprisonment for six months.
Under Section 326/149 IPC:
To suffer Rigorous Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous imprisonment for one month.
Under Section 302 IPC:
To suffer Imprisonment for life and fine of Rs. 200/-, in default to further suffer rigorous imprisonment for three months.
Ayub Khan:
Under Section 302/149 IPC:
To suffer Imprisonment for the life and fine Rs. 200/- in default to further suffer rigorous imprisonment for three months.
Under Section 326 IPC:
To suffer Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous imprisonment for one month.
Under Section 148 IPC:
To suffer rigorous imprisonment for six months.
Bahadur Khan, Sattar Khan, Abdul Majid S/o Nawab Khan, Abdul Rehman, Ahmed Khan, Abdul Majid s/o Wajir Khan, Majroob Khan:
Under Section 302/149 IPC:
Each to suffer Imprisonment for life and fine of Rs. 200/-, in default to further suffer rigorous imprisonment for three months.
Under Section 326/149 IPC:
Each to suffer rigorous imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous imprisonment for one month.
Under Section 148 IPC:
Each to suffer rigorous Imprisonment for six months. Substantive sentences were Ordered to run concurrently.
2. It is the prosecution case that the informant Sattar Khan (PW.3) submitted a written report at Police Station Amer (Jaipur) on August 19, 1989 at 8.15 AM against thirteen persons including the appellants to the effect that at 7.30 AM on the said day they came armed with lathi, pharsi and gandasi in Jeep No. RST 1375 in front of his house and exhorted to kill the family members of the informant. At that time Abdul Gani, Siraj Khan, Yakub, Raees and Abdul Rehman were present in his house. Ibrahim (appellant) inflicted blow with gandasi on the head of Abdul Gani who fell down. AH Mohd, and Abdul Majid (appellant) gave lathi blows on the head of Abdul Gani. Ayub and Bahadur (appellant) caused injury with Gandasi on the hands of Raees. Ahmad and Abdul Rehman (appellant) inflicted lathi blows on the person of information. Abdul Gani was removed to the hospital. On the basis of the said report a case under section 147, 148, 149, 323 and 307 IPC was registered and investigation commenced. During investigation injured Abdul Gani died therefore the case converted into under section 302 IPC. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 2, Jaipur District Jaipur, Charges under Sections 148, 302, 302/149, 326, 326/149, 323, 323/149, 324 and 324/149 IPC were framed against the the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the explanation under Section 313 Cr.P.C., the accused claimed innocence. Six witnesses were examined in defence. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above.
3. A look at the post mortem report goes to show that the cause of death of Abdul Gani was Coma brought about as the result of injuries to skull and brain. Injury No. 1 was sufficient to cause death. As per the testimony of Dr. H.L. Bairwa (PW.15), the deceased vide post mortem report (Ex.P-11) sustained following ante mortem injuries:-
“(1) Incised would of size 019cm x 02cm x cranial cavity deep vertically placed over mid line on fronto paraito and supra occipital region. .05 cm above middle of both eye brows and 06cms above occipital protuberance of the head and margins are clean cut, regular and well defined with fresh clotted blood.
(2) Abrasion 06 x 1/2 cm and vertically placed on left tibia! skin Middle 1/3 part reddish in colour.
(3) Two abrasion size each of 1/2 x 1/2 cm on dorsum of left foot in middle part reddish in colour.
(4) Abrasion 0 1/2 x 1/2 cm dorsal aspect of root of left fifth toe, on dorsal aspect, reddish in colour.
(5) Multiple abrasions of size 2 x 1 cm to 1/2 x 1/2 cm on dorsum of right foot at places five in number redish in colour.
(6) Multiple abrasions of size 1/2 x 1/2 cm to 1/4 x 1/4 cm over Rt. tibia skin middle 1/3 part five in number at places reddish in colour.
(7) Diffuse swelling middle of sternal region of chest.
4. Dr. H.L. Bairwa (PW. 15) also examined the injuries received by Raees who vide injury report (Ex.P-12) received following injury:-
(1) One incised would with bleeding 2″ x 1/2 x bone deep.
(2) Incised wound with bleeding 1″ x 1/4 x bone deep on dorsum Rt. hand over proximal third of Rt. ring finger.
(3) One incised wound with bleeding 1 1/2 x 1/4 x bone deep. downward or medially on dorsum Rt. hand over proximal half of Rt; little finger.
5. Siraj Khan vide injury report (Ex.P-13) received following injuries:
(1) Bruise 2cm x 1cm on Rt. Side of scalp in the frontal region.
(2) Bruise 3cm x 2cm on the back of Rt. heel.
6. Sattar Khan vide injury report (Ex.P-14) received following injuries:-
(1) Abrasion 1cm x l/2cm on back of Lt, index finger.
(2) Abrasion l/2cm x l/2cm on the back of Lt..middle finger.
7. On behalf of the appellants injury reports of accused Ahmad Khan, Ibrahim, Mujaffar and Ayub Khan were placed on record.
Accused Ayub Khan vide injury report (Ex.D7A) received Lacerated wound of size 0.3cm x 1cm x bone deep on right side of fronto parietal region of skull.
8. Accused Mujaffar vide injury report (Ex.D8A) received Lacerated wound 21/2 x 1/2 cm x muscle deep vertically placed tempo parietal region of skull.
9. Accused Ahmed Khan vide injury report (Ex.D-9A) received following injury:
(1) Lacerated wound of size 06 x l/2cm x bone deep at left parietal region.
(2) Abrasion 1 1/2 x l/4cm forehead Rt. side.
(3) Bruise of size of 4 x 1cm on dorsum of writ
(4) Abrasion 5 x l/2cm oblique and vertically placed right shoulder.
(5) Lacerated wound of size 06 x 1cm x muscle deep at medial aspect.
(6) Multiple bruises placed at chest of size of 1.5 x 2cm.
(7) Bruise blackish under the finger.
10. Accused Ibrahim vide injury report (Ex.D-10A) received following injuries:-
(1) Bruise 1/2 x 1/2 at left thumb
(2) Bruise 12cm x 1/2 at left thigh
(3) Abrasion 1/2 x 1/2 medial surface of hand
(4) Lacerated wound 2 1/2 x 1/2 cm x muscle deep at root of nail
(5) Bruise 04 x 2 1/2 cm posterior surface of force arm.
(6) Lacerated wound 3cm x 1/2 cm x bone deep left parietal region.
(7) Lacerated wound 4 x 1cm x muscle deep of skull
(8) Lacerated wound 4 x 1cm x skull tissue deep on left temporal region.
(9) Bruise of size 6 x 4cm on medial region of chest. Three injuries were found grievous in nature.
11. It is contended on behalf of the appellants that accused Ahmad Khan, Ibrahim, Mujaffar and Ayub Khan sustained injuries and the said injuries were not explained by the prosecution therefore it may be inferred that the prosecution has not come with true version of the incident. It is further canvassed that since the testimony of Siraj Khan (PW.1), Races (PVV.2), Sattar Khan (PW.3), Abdul Rehman (PW.6) and Yakub (PW.7) has been disbelieved by the trial Judge qua the co-accused Mahboob and All Mohd., no reliance can be placed on their evidence against the appellants also. Siraj Khan (PW. 1) was Head Constable in the police and because of his influence the origin and genesis of the occurrence has been suppressed by the prosecution. Since the complainant party and accused party were the neighbours the story of the prosecution that the accused came in a jeep could not be relied upon. It is further contended that the FIR was lodged after a great delay and it is inexplicable as to how the police came to know about the occurrence and reached at the spot even before institution of the FIR. It is further contended that the accused had a right of private defence, therefore they could not have been convicted with the aid of section 149 or 34 of IPC.
12. Per contra, learned Public Prosecutor and learned counsel for .the complainant supported the impugned judgment and urged that the appellants were rightly convicted and sentenced. The appellants formed unlawful assembly and inflicted injuries on the person of deceased and the witnesses. We were taken through the evidence and various authorities were cited, on behalf of both the sides.
13. We have pondered over the submissions and carefully weighed the material on record.
14. Siraj Khan (PW.l) in his deposition stated that on August 19, 1989 around 7.00 AM when he along with Siraj, Abdul Gani, Abdul Rehman, Yakub Khan, Sattar Khan, Abdul Rehman and Races was sitting in the house of his uncle Sattar Khan, he saw Jeep No. RST-1375 got halted in front of the house. Thirteen accused persons got down of the jeep and exhorted to kill family of Sattar. Hearing their voice Abdul Gani, who was not having any weapon, when to the accused persons. Ibrahim inflicted gandasi-blow on the head of Abdul Gani, as a result of which he fell down. Thereafter AH Mohammed and Abdul Majid caused injuries with lathi on the head of Abdul Gani. Yakub Khan, Bahadur Khan inflicted gandasi blows on hand of Races, whereas Abdul Rehman and Ahmad Khan gave lathi blows on the person of Sattar Khan. Magroob, Rashid, Sattar Khan, Abdul Majid Nawal Khan gave beating to him (Siraj Khan). There was hue and cry everywhere and the police arrived at the spot. In the cross examination Siraj Khan stated that he was serving as C.I. in CID CB for last 19 years and at the time of incident he was posted in Jaipur. He admitted that all the accused persons were residing near the house of Sattar for the last 20 years. He denied to have seen injuries sustained by accused Ibrahim. Jafar, Yakub and Ahmad Khan. He denied this suggestion also that the complainant party had gone to the house of Inayat Khan and caused injuries on the person of Inayat, Jafar, Yakub and Mujaffar.
15. Races (PW.2), Sattar Khan (PW.3), Abdul Rehman (PW.6) and Yakub Khan (PW.7) corroborated the testimony of Siraj Khan. Sattar Khan in his cross examination however stated that Siraj himself wrote the report at the police station and he only put his signatures. None of the witnesses explained the injuries sustained by accused persons.
16. It also appears that Niranjan Lal, CI conducted the investigation of the case but since he died during pendency of the trial his statement could not be recorded. Prabhu Dayal (PW.19), who worked under Niranjan Lal, appeared in the witness- box and exhibited the documents alleged to have been drawn by Niranjan Lal. Prabhu Dayal stated that he did not accompany Niranjan Lal at the time of investigation.
17. Factual situation of the case may be summarised thus:-
(i) As per FIR Gandasi blow by Ibrahim and lathi-blows by All Moham-mad and Abdul Majid were inflicted on the head of deceased Abdul Gani. Post Mortem Report however reveals that deceased only had . one incised wound on the head. No injury by blunt weapon was found on the head of the deceased.
(ii) Injuries on the hands of Raees were attributed to Ayub and Bahadur.
(iii) Injuries with lathi on the person of Sattar Khan were attributed to Ahmad and Abduf Rehman.
(iv) Cause of death according to post mortem report was incised wound on the head, which was attributed to Ibrahim.
(v) Accused Ibrahim received as many as 9 injuries, out of which 3 were found grievous.
(vi) Accused Ahmad Khan sustained as many as 7 injuries, out of which 3 were lacerated wound.
(vii) Accused Ayub Khan and Mujaffar each received learned wound on parietal region.
(viii) Accused and complaint parties were neighbours.
(ix) Niranjan Lal, Investigation Officer died during pendency of trial and his statement could not be recorded.
(x) The injuries sustained by the accused were not explained by the prosecution witnesses.
18. In the light of factual situation of the case it would be worth while to consider the principles governing constructive liability under section 149 IPC. This section requires the consensus of five persons to do an unlawful act prohibited by Section 141, in addition to which, in Order to create a liability under this section, there must be proof that the accused knew that the offence committed by the member of the assembly was likely to be committed by any of them. Section 149 does not create new offence but deals with vicarious liability of the members of unlawful assembly. In Munir Khan v. State of U.P. (AIR 1971 SC 355), it was held that where there is a mutual fight between the parties, the court will not be justified in convicting any of the accused by having recourse to section 149. In a mutual fight there is no common object.
19. It is well settled that where there is a spontaneous fight between the parties or where the right of defence is exceeded, the question of constructive liability under section 149 or 34 IPC does not arise and each individual is responsible for the injuries caused by him.
20. Bearing these parameters in mind when we proceed to consider the facts of the case we find that the foundation of the case was laid by an experienced police officer Siraj (PW.l), who was C.I. in CID CB, scribed the FIR. Although he claims that when the deceased received fatal injury, he was some where near the deceased, yet no injury was caused to him. He did not even see the injuries received by the accused Ibrahim. Ayub Ahmed and Muzaffar. There are many question that remained to be answered when the accused person were residing nearby the house of informant Sattar, then why they came in a Jeep? Why Siraj, Abdul Gani, Yakub, Raees and Abdul Rehman assembled in the house of Sattar so early in the morning? Was there any special occasion? How and in what manner accused Ibrahim received nine injuries including there fractures? How and in the what manner accused Ayub, Ahmed Khan and Muzaffar sustained learned wounds on parietal region and other parts of the body? It is also inexplicable that the injures attributed to Ali Mohammad and Abdul Majid were not found on the head of the deceased.
21. It is trite that when the accused has taken the plea that they acted in self defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. It is well known that guilt of the accused to be judged on that basis of the facts and circumstances of the particular case. The injuries found on the person of the accused being serious in nature assume importance in respect of genesis and manner of occurrence. Having carefully scanned the material on record we are of the opinion that free fight took place between the complainant and the accused parties as a result of which Abdul Gani died and other sustained injuries. In the facts as noticed by us even if the right of private defence was available to accused Ibrahim he had far exceeded it in dealing the fatal blow on the head of About Gani. Ibrahim must therefore be held guilty under second part of section 304 IPC. Since free fight ensued charges under sections 148 and 149 IPC are not established against any of the accused. Charge under Section 324 IPC is however established o beyond reasonable doubt against accused Ayub Khan. Other accused person viz. Bahadur Khan, Sattar Khan, Abdul Majid s/o Nawab Khan, Abdul Majid s/o Wajir Khan, Majroob Khan, Ahmed Khan, Abdul Rehman are entitled to benefit of doubt.
22. As a result of the above discussion we dispose of the instant appeal in the following terms:-
(i) Appellant Ibrahim instead of section 302 IPC is convicted under Section 304 Part 11 IPC. Since he has remained in confinement for a period of more than five years eleven months the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Ibrahim, who is in jail shall be set at liberty forthwith, if not required to be detained in any other case. He is acquitted of the charges under sections 148 and 326/149 IPC.
(ii) Appellant Ayub Khan is convicted under section 324 IPC and sentenced to the period already undergone by him in confinement. He is, however, acquitted of the charges under sections 148, 326 and 320/149 IPC. Ayub Khan is on bail he need not surrender and his bail bonds stand discharged.
(iii) Conviction and sentence of appellants Abdul Majid s/o Wajir Khan, Bahadur Khan, Sattar Khan, Abdul Majid s/o Nawab Khan, Abdul Rehman, Ahmed Khan and Majroob Khan under sections 148, 302/149 and 326/149 IPC are set aside and they stand acquitted of the said charges. Bahadur Khan, Sattar Khan, Abdul Majid s/o Nawab Khan, Abdul Rehman, Ahmed Khan and Majroob Khan are on bail they need not surrender and their bail bonds stand discharged. Appellant Abdul Majid s/o Wajir Khan, who is in jail shall be set at liberty forthwith, if not required to be detained in any other case.
The impugned judgment of the learned trial Judge is modified as indicated herein above.