JUDGMENT
Shiv Kumar Sharma, J.
1. The seventeen appellants before us, along-with three other co-accused, were tried before the learned Additional Sessions Judge (Fast Track) Alwar in Sessions cases No. 57/2001 (13/000) (14/1999). Learned Judge vide judgment dated October 5, 2002 found the appellants guilty and convicted them as under:
1. Shiv Lal, 2. Amar Singh, 3. Ramjeewan @ Seli @ Ramsahay, 4. Surjan, 5. Girraj, 6. Shri Ram, 7. Jai Narayan, 8. Jagga @ Jagdish, 9. Arjan, 10. Sitya @ Sita, 11. Sohan Lal, 12. Ratan Lal, 13. Krishna Lal, 14. Roop Narayan, 15. Sunder Lal, 16. Kishan and 17. Pappu;
Under Section 148 IPC:
Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment.
Under Section 323 IPC:
Each to suffer rigorous imprisonment for one year.
Under Section 302/149 IPC:
Each to suffer imprisonment for life and fine of Rs. 2000/-, in default to further suffer six months rigorous imprisonment.
Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita:
Under Section 324 IPC:
Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment.
Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Girraj, Shri Ram, Jai Narayan, Sohan Lal, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu:
Under Section 324/149 IPC:
Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment.
Sohan Lal:
Under Section 326 IPC:
To suffer rigorous imprisonment for seven years and fine of Rs. 1500/-, in default to further suffer three months rigorous imprisonment.
Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Girraj, Shri Ram, Jai Narayan, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu:
Under Section 326/149 IPC:
Each to suffer rigorous imprisonment for seven years and Fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment.
Girraj:
Under Section 325 IPC:
To suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment.
Roop Narayan, Jagga @ Jagdish, Arjan and Sitya @ Sita Shiv Lal, Amar Singh, Ramjeewan @ Seli @ Ramsahay, Surjan, Sohan Lal, Shri Ram, Jai Narayan, Ratan Lal, Krishna Lal, Sunder Lal, Kishan and Pappu:
Under Section 325/149 IPC:
Each to suffer rigorous imprisonment for three years and fine of Rs. 500/-, in default to further suffer three months rigorous imprisonment.
Shiv Lal and Roop Narayan:
Under Section 3/25 Arms Act:
Each to suffer rigorous imprisonment for three years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment.
Substantive sentences were directed to run concurrently.
(2). The prosecution story is woven like thus:
On December 9, 1998 informant Mukhram (PW. 2) submitted a report (Ex. P. 1) at Police Station Sadar Alwar alleging therein that the informant and his family members came to Alwar in a tractor for some work and at around 4.30 PM while they were returning back they were surrounded by 15-20 persons near village Gangodi, out of them they had identified some persons who were named in the report. Roop Narayan, Shiv Lal, Sunder Lal and Pappu, who were armed with Guns, opened fire that hit his father Har Lal (deceased) as a result of which he fell down, thereafter Ramjeewan, Amar Singh, Surjan, Arjan and Krishan inflicted Pharsi blows on Har Lal, who died on the spot, thereafter Jagdish gave blow with Pharsi on Sumrata, Sohan made assault with lathi and spear on Mangal, Kishan gave lathi blow on the hand of Radhey while Shri Ram, Jain Narayan and Giriraj made assault on Pappu and informant Mukhram, Ratan and Sitya had also made assault. On that report a case under Sections 147, 148, 149, 323, 341, 307 and 302 IPC was registered and investigation commenced. Dead body was subjected to post mortem, statements of witnesses were recorded, the accused was arrested, necessary memos were drawn and on completion of investigation charge sheet was filed. IN course the case came up for trial before the learned Additional Sessions Judge (Fast Track) Alwar. Charges under Sections 302, 302/149, 147, 148, 323, 324, 307, 326/149, 325/149, 324/149 IPC and Section 3/25 Arms Act were framed against the appellants, who denied the charge 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 and stated that they were falsely implicated. Shivlal, Sitya @ Sita Ram, Jairam, Leela, Surjan and Musya stated that while they were going back to their village from Alwar they were beaten up by complainant party with lathies and Pharsis, for which Shiv Lal lodged the report against the members of the complainant party. No witness in defence was however examined. Learned trial Judge on hearing final submissions acquitted co-accused Musya, Jai Ram and Leela Ram, but convicted and sentenced the appellants as indicated herein above.
3. We have given earnest consideration to the rival submissions and scanned the record in the light of the criticism levelled by the learned counsel.
4. Death of deceased Har Lal was indisputably homicidal in nature. As per postmortem report (Ex. P.83) he received following ante mortem injuries:
1. Lacerated wound on Rt. side occipital region 1″ x 1/4″ x M. deep with bleeding.
2. Bruise mid fore head 3″ x 1″.
3. Lacerated wound left side parietal region 1″ x 1/4″ x M. deep.
4. Lacerated wound left side occipital region 1/2″ x 1/4″ x M. deep.
5. Extensive bruise on left shoulder post 3″ x 3″.
6. Extensive bruise on left elbow 3″ x 3″.
7. Extensive abrasion left wrist and hand.
8. Extensive bruise on Rt. shoulder post 2″ x 2 1/2″.
9. Extensive abrasion Rt. arm 3″ x 1″.
10. Extensive abrasion Rt. hand post 2″ x 1″.
11. Extensive abrasion Rt. side chest near nipple 2 1/2″ x 2″.
12. Incised wound Rt. lower leg 3″ x 1/2″ with broken bones exposing ant.
13. Incised wound 1/2″ x 1/4″ two in number near to injury No. 12.
14. Lacerated wound on left leg 1 1/2″ x 1/2″ in the middle.
In the opinion of Dr. Raj Kumar Mishra (PW. 21) the cause of death was hemorrhage and shock as a result of fracture of skull and long bones.
Summrat (PW. 6) vide injury report (Ex. P. 75) received following injuries:
1. Incised wound left arm from shoulder to lower end arm 8″ x 2-1/2″ x muscle deep.
2. Lacerated wound Rt. pinna 1/3cm x 1/3cm.
3. Incised wound Rt. side temporal region 1/2 x 1/6 x M. deep.
Mangal Ram (PW. 9) vide injury report (Ex. P. 76) received one incised wound Rt. leg in the middle 1/2″ x 1/4″ x M: deep Vide X-ray report (Ex. P. 77) he sustained fractures of upper 1/3rd shaft of tibia and fibula.
Pappu (PW. 7) vide injury report (Ex. P. 78) received following injuries:
1. Abrasion Rt. lower leg 1/2″ x 1/2″
2. Abrasion left lower leg 1″ x 1/2″
3. Abrasion left forearm 2″ x 1/2″
4. Abrasion left lower arm 1/2″ x 1/2″
5. Abrasion left side mexilla 1″ x 1″
6. In duration left side mandible.
7. In duration with bruise left upper side with loose of 2 soket bleedy.
8. In duration lower lip left side with lose of 2 teeth with soket bleedy.
Radhey Shyam (PW. 8) vide injury report (Ex. P.79) received following injuries:
1. Lacerated wound left side forehead 3/4″ x 3/4″.
2. Super ficial lacerated wound 1″ x 1/2″ Rt. lower arm cut.
Roop Ram (PW. 5) vide injury report (Ex. P. 80) received following injuries:
1. Abrasion left upper leg two in number 1/2 cm x 1/2 cm.
2. Lacerated wound left side frontal region 3/4″ x 1/4″ with in duration left lat. side skull.
3. Incised wound upper part mid scapular region 3″ x 1/4″ x muscle deep.
4. Scattered wound left hand 1″ x 1/4″.
Timman (PW. 1) vide injury report (Ex. P. 81) received following injuries:
1. Incised wound on Rt. shoulder superficial on skin part 3″ x 1/4″, 1″ x 1/4″.
2. Abrasion on Rt. Scapular region 1-1/2″ x 1/4″.
3. Superficial lacerated wound with abrasion 3/4″ x 1/2″ mid forehead.
4. Scattered small gun shot wounds Rt. lower leg, with ankle and foot in duration and clotted wound (1/3 cm x 1/3cm each).
5. Bruise Rt. index 1/2″ x 1/4″.
Vide X-ray report (Ex. P. 82) no bony injury was found.
5. At this juncture is may also be noticed that appellant Shiv Lal instituted FIR No. 356/98 at Police Station Sadar Alwar on December 12, 1998 at 11.30 PM against the members of complainant party viz. Har Lal, Doli, Roop Ram, Kalya, Jagga, Ramdayal, Pappu, Timman, Sumrat, Mangal, Laja, Kishan Lal, Radhey, Shibbu, Bhajni, Sohan and Mukha to the effect that on December 9,1998 around 4.30 – 5.00 PM while he (Shivlal) Musa, Surjan Jai Ram, Sri Ram, Sita Ram and Girraj were returning to their village Doba after meeting Prahlad they were belaboured near village Gangodi by the aforesaid assailants, who were armed with Guns, Pharsis and Lathis. Timman inflicted blows with Pharsi and Kala, Roopa, Lala and Pappu inflicted lathi blows on Shiv Lal, Musa, Surjan, Jai Ram, Sri Ram, Sita Ram and Girraj were also given beating with lathis and pharsis. Musa was admitted to hospital. These assailants prevented him from lodging the report. On that report a case under Sections 147, 148, 149 and 323 IPC was registered and after investigation Tiled the charge sheet No. 233/98 under Sections 147, 148, 149, 323, 324 and 325 IPC against the members of complainant party viz. Mukhram, Roopram, Gyarsya, Timman, Lalaram, Mangal Ram, Sumrat, Pappu, Radhey Shyam and Kishan Lal.
The injuries sustained by accused party were as under-
Accused Musa Ram vide injury report (Ex. D. 11A) received following injuries:
1. Abrasion Rt. lat side parietal region 1″ x 1/4″
2. Abrasion occipital region 3/4″ x 1/2″
3. Abrasion left lat. side 3/4″ x 1/2″ parietal region
4. In duration Rt. leg in the middle 1″ x 1″
5. Abrasion Rt. lower ankle lat. 1″ x 1″
Accused Shiv Lal vide injury report (Ex. D. 15A) received following injuries:
1. Bruise bleeding 3 x 6 cm Rt. hand
2. Bruise bleeding 7 x 6 cm Rt. elbow
3. Incised wound Rt. side parietal 4 x 2cm skull with hard scab of blood.
4. Abrasion 6 x 2cm Rt. Forearm.
Vide X-ray report (Ex. D.12A) no body injury was found.
Accused Surjan vide injury report (Ex. D. 17A) received following injuries:
1. Bruise with lacerated wound 4 x 3, 2 x 3cm bleeding hard scab with diffuse swelling.
2. Bruise 6 x 4 cm bleeding.
3. Two abrasion 1/2 x 1/2 Rt. Elbow joint.
4. Abrasion 4 x 2cm Rt. side abdomen.
Vide X-ray Report (Ex. D.-13A) fracture of nasal bone was found.
Accused Jai Ram vide injury report (Ex. D.16A) received following injuries:
1. Incised wound 3 x 1 x 1/2 It. side parietal occipital Hard scab in heavy pyse skull
2. Four scatter abrasion 3 x 1/4, 1 x 1/4 cm
3. dry. It. knee
Accused Leela Ram vide injury report (Ex. D. 18A) received one lacerated wound 3 x 1 x 1/2 cm on left leg with soft scab.
Accused Sita Ram vide injury report (Ex. D. 19A) received one abrasion 10 x 8 cm on Rt. wrist with diffuse swelling.
6. Supporting the contents of the FIR informant Mukh Ram (PW. 2) deposed that while he along with his family members, were returning back to their village in a tractor they were surrounded by the appellants. Roop Narayan, Shiv Lal, Sunder Lal and Pappu, who had Guns, opened fire. Roop Narayan’s fire hit at the right foot of Timman. Ram Jeevan and Arjan gave blows with Pharsi on the head of his father Har Lal, whereas Krishna gave blow with Pharsi on the right hand of Har Lal and Surjan and Arjan inflicted pharsi blows on the feet of Har Lal. Sunder Lal and Roop Narayan gave blows with blunt side of the gun on the head of Har Lal. When he (Mukhram) made attempt to rescue his father, Ratan gave lathi blow on his right palm and Leela inflicted blow with lathi on his right thigh. Timman (PW. 1) deposed that the appellants, who were hiding behind the bushes, surrounded them and Roop Narayan then opened fire that hit on his right foot. Jagga then gave pharsi-blow on his right shoulder. Arjan inflicted pharsi-blow on his another shoulder. Ramjeewan and Arjan gave pharsi blows on the head of Har Lal. Amar Singh and Surjan caused injuries with pharsi on Har Lal’s feet. Sunder Lal and Roop Narayan caused injuries on the head of Har Lal with blunt side of the guns. Kishan gave injuries on the right hand and ribs of Har Lal. The assailants came in a tractor which was driven by Jai Narayan. Statement of Mukh Ram and Timman gets corroboration from the testimony of Sumrat (PW. 6), Mangal Ram (PW. 9), Pappu (PW. 7), Radhey Shyam (PW. 8) and Roop Ram (PW. 5).
7. Having scrutinised the FIRs of the instant case and of the cross case, we find that mutual conflict developed and there is no reliable and acceptable evidence as to how it had ensured and at whose instance. The case appears to be of a free fight. The place of the incident was a narrow path on which pebbles were lying. The complainant party and the accused party both were sitting in tractors. Considering all these circumstances, we do not think it possible to say with certainty that the accused party was the aggressor, though undoubtedly the prosecution witnesses sustained quite a large number of injuries. As already noticed in the FIR the informant Mukh Ram stated that Roop Narayan, Shiv Lal, Sunder and Pappu opened fire at Har Lal, but no gun shot injury was found on the body of Har Lal. On the other side in the cross FIR lodged by Shiv Lal it was stated that members of complainant party were aggressors and they gave beating to the members of accused party. The origin and genesis of the occurrence appears to have been withheld by both the parties. Since accused were not the aggressors and it was a free fight each individual was responsible for his own acts as was held in Vishvas Aba Kurane v. State of Maharastra that in a free fight no right of private defence is available to either party and each individual is responsible for his own acts. Thus no case either under Sections 147 or 148 IPC can be said to have been made out against the appellants and the conviction of none of the appellants is sustainable with the and of Section 149 IPC.
8. The question that still remains to be answered is whether it is possible to affirm conclusion as to which injury was caused by which accused. Undeniably there is no reliable evidence on the record to hold as to what exactly transpired at the time of incident and who acted as the aggressor and who dealt the first blow. As already noticed according to FIR Roop Narayan, Shiv Lal, Sunder and Pappu had guns and they opened fire that hit Har Lal, but as per post mortem report (Ex. P. 83) no gun shot injury was found on the dead body of Har Lal. We find that right from the beginning the prosecution witnesses have given a distorted version of the incident. The fact that they eye witnesses, examined on behalf of the prosecution are injured persons, assures their presence on the scene of occurrence, but that does not necessarily mean that they have given a true version. In order to adjudge as to who was responsible for the fatal injury when we look at the testimony of Dr. Raj Kumar Mishra (PW. 21), who performed autopsy on the dead body, we notice that death of Har Lal was caused as a result of hemorrhage and shock de to fracture of skull and leg bones. Lacerated wound on right side of occipital region (Injury No. 1) and lacerated wound on left side of occipital region (Injury No. 4) were found sufficient to cause death in the ordinary course of nature. Incised wound on right lower leg (Injury No. 12) and lacerated wound on left leg (Injury No. 14) also made contribution in causing death. As per ocular testimony however the injuries on head and legs were jointly attributed to appellants Ramjeewan, Amar Singh, Krishna, Arjan, Surjan, Sunder Lal and Roop Narayan, but the prosecution witnesses could not satisfactorily answer as to which individual caused the fatal injuries. The fractures on head and legs which proved to be fatal were not attributed to any one of the appellants. In a similar situation the Apex Court in Amrik Singh v. State of Punjab 1993 Cr.L.J. 2857 indicated that where the injury which proved to be fatal was not attributed to any one of the accused, the accused who inflicted one injury on the head of the deceased was not responsible for other fatal injury. In that case accused Kewal Singh struck a gandasa blow from its sharp side on the head of Amarjeet Singh (deceased). Autopsy Surgeon found a lacerated wound on the scalp and incised on the front area of the head. He opined that the injuries were sufficient in the ordinary course of nature to cause death. The High Court held that Kewal Singh could not be held responsible for the other injury which was inflicted with blunt weapon and which proved to be fatal, therefore Kewal Singh was convicted under Section 326 IPC. Having regard to the situation in which free fight is said to have taken place he was sentenced to suffer rigorous imprisonment for seven years. The Apex Court confirmed the view of High Court but reduced the sentence from seven years to three years rigorous imprisonment.
9. In Jarnail Singh v. State of Punjab AIR 1982 SC 70 it was held that since there was no pre-concert between the accused persons nor a meeting of minds between them before the offence took place, the conviction of the accused under Section 302/34 IPC was bad and since the accused merely gave a taken blow on the ear and caused simple injuries, the conviction was altered to one under Section 324 IPC.
10. As already noticed that the injuries sustained by deceased Har Lal, which proved to be fatal were not attributed to any one of the accused appellants, but jointly attributed to appellants Roop Narain, Arjan, Amar Singh, Surjan, Sunder Lal and Krishna. We find them guilty under Section 326 IPC. Injury with spear on the foot of Mangal has been attributed to appellant Sohan and we also find him guilty under Section 326 IPC. We also find appellant Roop Narain guilty under Section 3/25 Arms Act and Section 324 IPC, appellants Jagdish and Sitya under Section 324 IPC, appellant Girraj under Section 325 IPC and appellants Shiv Lal, Ramjeevan, Shri Ram, Jai Narain, Ratan Lal, Pappu and Kishan s/o Mitthu under Section 323 IPC.
11. Consequently we dispose of the instant appeals in the following terms.:
While acquitting all the appellants of the charges under Sections 302/149, 326/149, 325/149, 324/149 and 148 IPC, we convict and sentence them as under:
(i) Appellants Amar Singh, Arjan, Surjan, Sunder Lal, Krishna, Roop Narain and Sohan are convicted under Section 326 IPC and sentenced to suffer rigorous imprisonment for three years and fine of Rs. 500/- in default to further suffer two months rigorous imprisonment. Appellant Roop Narain also stands convicted under Section 324 IPC and sentenced to suffer rigorous imprisonment for one year and under Section 3/25 Arms Act and sentenced to suffer rigorous imprisonment for one year. The sentences shall run concurrently. Appellants Arjan, Sunder Lal, Sohan and Roop Narain have remained in jail for a period of more than three years and six months and appellants Amar Singh, Krishna and Surjan, who have remained in custody for more than seven years and are still in jail, shall be set at liberty forthwith if not required to be detained in any other case.
(ii) Appellant Girraj is convicted under Section 325 IPC and sentenced to suffer rigorous imprisonment for two years and fine of Rs. 500/- in default to further suffer rigorous imprisonment for three months. Appellant Girraj has already remained in custody for a period of more than three years and seven months and he is in jail therefore he shall be release forthwith if not required to be detained in any other case.
(iii) Appellants Jagdish and Sitya are convicted under Section 324 IPC and sentenced to suffer rigorous imprisonment for one year. They have already been remained in custody for a period of more than three years and six months and are in jail, therefore they be released forthwith if not required in any other case.
(iv) Appellants Shiv Lal, Ramjeevan, Shri Ram, Jai Narain, Ratan Lal, Kishan S/o Mitthu and Pappu are convicted under Section 323 IPC and sentenced to suffer rigorous imprisonment for six months. Appellant Shiv Lal is however acquitted of the charge under Section 3/25 Arms Act. They have already remained in custody for a period of more than three years and six months and are in jail, they be released forthwith if not required in any other case.
(v) Impugned judgment of learned trial judge stands modified as indicated above.