KAN SINGH, J - (1.) I have before me three appeals. One is by Subhan Khan and it arises out of the judgment of the learned Additional Sessions Judge, Alwar, dated 6-2-70 in Sessions case No. 24 of 1969. Appellant Subhan Khan were found guilty of offence under secs. 148, 304 Part II read with sec. 149,326 read with sec. 149 Indian Penal Code. For the offence under sec. 148 Indian Penal Code each of the accused was awarded 2 years rigorous imprisonment. For the offence under sec. 304 Part II read with sec. 149 Indian Penal Code each of the accused was awarded five years rigorous imprisonment. For the offence under sec. 326 read with sec. 149 Indian Penal Code each of the accused was awarded five years rigors imprisonment and a fine of Rs. 50/-, in default one month's further rigorous imprisonment in each case. For the offence under sec. 325 read with sec. 149 Indian Penal Code each of the accused was awarded two years rigorous imprisonment and a fine of Rs. 25/-, in default 15 days further rigorous imprisonment in each case. The substantive sentences of imprisonment were ordered to run concurrently.
(2.) CRIMINAL Appeals Nos. 164 of 1970 and 183 of 1970 are by convicts in the counter case which was Sessions Case No. 23 of 1959, decided on 6-2-70. The five accused appellants concerned in the two appeals namely, CRIMINAL Appeal Nos. 164 and 183 of 1970 were convicted under secs. 148, 326 read with sec. 149 and 323 read with sec. 149 Indian Penal Code. Each one of them was sentenced to two years rigorous imprisonment under sec. 148 Indian Penal Code. For the offence under sec. 326 read with sec. 149 Indian Penal Code each one of them was sentenced to five years rigorous imprisonment and a fine of Rs. 50/-, in default one month's further rigorous imprisonment. For the offence under sec. 323 read with sec. 149 Indian Penal Code each of the accused was awarded six months rigorous imprisonment. All the substantive sentences were ordered to run concurrently. The unfortunate incident incident out of which the two cross cases had arisen took place on 27-2-69 at about 10 or 11 a. m. in the precincts of village Bhoot-Ka-Bas within the jurisdiction of police station Kathumber, district Alwar. Six persons on each side were injured and one Munshi on the side of the complainants in Sessions Case No. 24/1969 lost his life. Each party put the entire blame for the incident on the other assuming for itself the posture of injured innocence asserting that it was the opposite party who attacked the party of the injured in each case and the party of the injured and the complainant in each case had done no harm to the other side. The learned Sessions Judge, who tried both the cases, came to the conclusion that it was a case of free fight between the parties as both the sides had pre-determination to fight and consequently none of the parties could claim the right of private defence. He also observed that it was not necessary to decide as to who was the aggressor, nor was it necessary, in his opinion, to decide as to what was the place of the incident. He also came to the conclusion that from the evidence it could not be held as to which of the accused had caused injuries to which of the injured person on the other side. He concentrated on the existence of injuries on the person of members of each party and came to the conclusion that both the parties were armed with sticks and Farsis or sharp instruments and were determined to measure their strength. To show the approach of the learned Judge I may read a few passages from the judgment. While dealing with the question of the place of the incident this is what he said: "looking to the nature of the present case it is not necessary for me to find out as to at what place the occurrence took place or as to who was the aggressor party. It is clear from the evidence that the parties were armed with lathis and pharsis i. e. the accused party in the present case and in the counter case also the complainant party was also armed with lathis and pharsis. " Then a little after this passage the learned Judge observed as follows: - "in the instant case both the parties, the complainant and the accused persons met suddenly and fought with each other and in that fight the complainant party suffered more injuries than the accused party. " As regards the part played by the individual accused the learned Judge observed as follows: - "the number of the accused is nine and it is in the evidence that all the accused persons gave different blows with lathis and pharsis to different members of the complainant party, but it cannot be ascertained with any reasonable certainty from the prosecution evidence that which one of the accused persons hit on the head of the deceased Munshi or which one of the accused hit Bhondu P. W. 1 which caused grievous injury to him with a sharp weapon. Similarly, it cannot be ascertained with any amount of certainty as to who caused the simple injuries with blunt weapon. Different versions as regards the infliction of blows are given by the individual prosecution witnesses. Therefore, I can only conclude that even though the death has resulted due to the injuries caused in this fight, but the intention could not have been to kill the deceased Munshi. " The judgement in the other case is on the same lines. In other words the rationale of the learned Judge is that there were injuries received by both sides & it was a case of free fight. The place of the incident which was material even if it could not be precisely established. It is also immaterial as to who was the aggressor and it was also not immaterial as to what individual injuries had been caused by each one of the accused in either case. The entire burden of the two judgments is that there was a free fight between the parties. Since the prosecution version in one case is the defence version in the other, I may now briefly recapitulate the versions of the two parties. In Sessions Case No. 24 of 1969, the prosecution version was that Bhondu and his brother Jumman were cutting 'serson' in their field and at that time an ox belonging to Nabi Khan trespassed into their field and had done damage to their gram crop. Bhondu protested to Nabi Khan for letting loose his ox. Bhondu, Subhan Khan, Arjun and their partymen then retorted that their ox would be let loose in this manner and it would graze like that. Bhondu then drove away the ox of Nabi Khan and this enraged Nabi Khan and members of his party who were doing 'lavni' i. e. cutting 'sarson' in their adjacent field. These persons armed themselves with lathis and Farsis and came to the field of Bhondu and inflicted a number of blows on his head and other parts of the body. Jumman, Munshi and Shomda came to intervene and rescued Bhondu, but they too were beaten by the accused party. Other persons from the party of the accused Nabi Khan then provided the reinforcement and they too joined Nabi Khan and others in attacking Bhondu and his companions who came to rescue him. In the fight Munshi, Shamsher, Bhondu, Jumman, Shondu and Shitab received a number of injuries with lathis and Farsis. Bhondu and other injured persons first went to Govindgarh Dispensary but there unfortunately for them the doctor was not available and hence they came to Alwar hospital. They were all admitted in the hospital. Munshi succumbed to the injuries and died at the Alwar hospital. The death of Munshi was reported by the doctor to police Kotwali, Alwar. On receipt of the message from the hospital Shri Megha Ram, Assistant Sub Inspector of Police (P. W. 14) went to the hospital & prepared the inquest report of the dead body of Munshi. He recorded the statement of injured Bhondu (P. W. 1) and sent it to police station Kathumar Katwali. P. W. 16 Shri Mahavir Singh, Station House Officer, Kathumar, treated Ex. P/l, the statement of Bhondu as the first information report and after registering the case started the investigations. The version of the other party was that on 27-2-69 Arjun, Subhan Khan, Sammi Khan, and Nabi Khan were cutting 'sarson' crop in their field called 'sayedwala'. Adjacent to this field was the field of Bhondu and in that field Bhondu, Jumman, Bhondu, Munshi, Shamsher and Shitab were cutting 'sarson'. Two days previous to the incident there was a quarrel between the parties as regards the damage done to the crop of Arjun, Sammi Khan and others by the cattle of the other party namely, that of Bhondu and others and on that occasion Bhondu and members of his party warned Sammi Khan and others that they would take revenge as and when occasion arose. In order to carry this threat in to practice Bhondu and his party members were alleged to have attacked the party of Sammi Khan and others. Shamsher was armed with Farsi, Munshi carried a 'jali' and the other persons had lathis. The party of Sammi Khan raised an outcry, when attacked and Nabi Khan and others went to rescue them, but they were also beaten along with Arjun, Sammi Khan and Subban Khan. The complainants in Sessions Case No. 183 of 1959 according to them received a number of in juries and it was on account of intervention of others that they were saved from further harm. These persons got themselves medically examined on 27-2-69 and lodged the first information report at police station Kathumar on 1-3-69. I may now briefly notice the injuries that were received by members of each side. Deceased Munshi. , according to Dr. M. L. Bhargava (P. W. 6), in Sessions case No. 24 of 1969, had the following injuries: - (1) Lacerated wound 3 c m. x 1/2 c. m. x bone deep on the top of the scalp 16 c. m. above the right ear. (2) Swelling 13 c. m. x 8 c. m. on the right side of the scalp, just above and behind the right ear. (3) Bruise 7 cm. x 4 cm. on the top of the left shoulder. (4) Bruise 7 c m. x 3 cm. transverse on the posterior and lower part of the left fore-arm, honycropitus felt, fracture of the radius present. On dissection it was also confirmed as fracture of radus at its lower part obliquely. (5) Swelling 6 c. m. x c. m. , on the dorsum of the left hand. (6) Bruise 8 c m. x 4 c. m. on the anterior lower part of the left thigh obliquely. (7) Abrasion 1 cm. x linear on the anterior and upper part of the left leg. (8) Lacerated wound 3 c. m. x 8 cm. x bone deep on the anterior and lower J/3rd of the right leg vertically Bonyorapitus folt i. e. fracture of both bones tibia and fibulae present. Confirmed by dissecting the skin and tissues. (9) Abrasion 2 -1/2 cm. x 1-1/2 cm. on the outer and upper part of right leg. (10) Bruise transversely 6 cm. x 3 cm. on the anterior and lower l/3rd part of the right thigh. On opening of the skull the doctor found that there was thick layer of blood clots present under the injuries on the top of the skull and right side of the skull, On removing these blood clots the doctor found that there were fractures of right parietal and temporal bones right side vertical and transverse, making a right angle in shape. This fracture went down causing fracture of temporal bone to the base of the skull. There was then a thick layer of blood clots present on the parietal and temporal area and base of the brain, right side. Blood clots were present inside the brain, right side. In the opinion of the doctor the death of Munshi occurred due to the compression of brain as a result of fractures of pariatal and temporal bones. Shitab had 8 injuries; 3 were on the scalp. Of them one was a lanerated wound and two were incised wounds. He had 4 bruises on the right eye, left leg, part of back on left side and on the back. He had also a lacerated wound on the dorsum of the left hand. The injury on the hand was grievous. Shonin had 9 injuries, 2 were on the scalp and both were incised. He had a lacerated wound on the right fore-arm and a punctured wound on the right leg below the knee and also he had swelling on the left fore-arm and on the right clavical regios. One of the two injuries on the head was found to be grievous and also there was a fracture below the swelling on the left fore-arm. Shamsher had 7 injuries. There were bruises on the left wrist, left leg, right knee, right leg, left arm and on the back. There was a swelling as toe dorsum of the left hand as well. There was a fracture below the bruise on the left wrist. All the other injuries were simple.
(3.) JUMMAH had 14 injuries. He had 4 punctured wound 2 on the left leg. He had bruises on the right fore-arm, left thigh, elbow, left fore-arm and right cheek and mandible. He had a lacerated wound on the right eye and also a lacerated wound on the left thumb. Then there was an incised wound on the scalp in the middle and a bruise on the right scapular region. There was a fracture beneath the bruise with swelling found on the right cheek. Bhondu had 3 injuries. One was a lacerated on the scalp. He had an abrasion on the right fore-arm and a bruise on the right shoulder. All the injuries were simple. D. W. S. Dr. Kundanlal Arora, who appeared in defence, deposed to the injuries by the various accused persons. Subhan Khan had 13 injuries. He had contused wounds on the eye brow, left occipital bone, left shoulder, anterior aspect of the left upper arm, lateral aspect of the left upper arm, contused wound on the lateral aspect lower one-third of the upper arm, contusion on the left side of the chest posterior aspect, on the chin of the left tibia and four contusions on the buttocks. He had an incised wound on the left thumb. All the injuries were simple. Semmi had 2 contused wounds; one on the right parietal bone; and the other on the hand and both of them were simple. Accused Nabi Khan had 10 injuries. One was an incised wound on the left parietal bone. Then he had two contused wounds on right parietal and on the occipital bone left side. Then there were contusions on the scapular region, on the left scapular region, on the left lumber region and on the right index finger. Injury No 1 on the head was grievous caused by a sharp weapon. The other injuries were simple. Semmi Khan had 3 contusions on left fore-arm, and on the vertex. ;