GARG, J. - (1.) BOTH the abovementioned two appeals are being decided by this common judgment as both relate to one incident that had occurred in the intervening night of 1-2/9. 95. FACTS OF D. B. CRIMINAL APPEAL NO. 652/2000
(2.) THE abovementioned accused appellants have preferred this appeal against the judgment and order dtd. 31. 10. 2000 passed by the learned Additional Sessions Judge, Raisinghnagar in Sessions Case No. 100/1995 by which he convicted and sentenced the accused appellants as under: Name of accused appellants Conviction U/s Sentence awarded to each accused appellant Bhagirath Ram Kumar Bega Ram Net Ram Munshi Lal Manphool Narain Ram @ Ram Narain Mota Ram 302/149 I. P. C. Imprisonment for life and to Pay a fine of Rs. 5000/- in default to further undergo 1 year's R. I.-do- 307/149 I. P. C. 7 years' R. I. and to pay a fine of Rs. 1000/- in default to further undergo 6 months' R. I.-do- 148 I. P. C. 1 year's R. I. and a fine of Rs. 500/- in default to further undergo 1 month's R. I.-do- 27 Arms Act 3 years' R. I. and a fine of Rs. 500/- in default to further undergo 1 month's R. I. All the sentences were directed to run concurrently. , +, + It arises in the following circumstances: i) That on 2. 9. 95 at about 6 a. m, P. W. 1 Indraj lodged a written report (Ex. P/1) before P. W. 15 Nilu Ram, ASI, Police Station Muklava, Dist. Sri Ganganagar against the present accused appellants inter alia stating that there was dispute in respect of contract of wine between his uncle Devi Lal (hereinafter referred to as the deceased) and his father Raja Ram (P. W. 5) and for that a quarrel had taken place before and the matter was settled at one time. It was further stated in the report Ex. P/1 by P. W. 1 Indraj that though compromise had taken place, still the accused appellants were pressing the deceased to leave the contract which was to be given to the accused appellant Bhagirath, but the same was not given by the contractors to Bhagirath. It was further stated in the report Ex. P/1 that in continuance of that dispute, a raid was conducted by the Department in the house of accused appellant Ram Kumar about 15 days back and thereafter the accused appellants were threatening to kill the deceased. ii) That it was further stated in the report Ex. P/1 by P. W. 1 Indraj that on 1. 9. 1995, in the noon at about 1'o clock, the accused appellants assembled before the house of the deceased armed with weapons, but since deceased was not there, they went away. It was further stated in the report Ex. P/1 that in the night of 2. 9. 1995 at about 1. 45 a. m. , the accused appellants armed with guns, pistols and Gandasis came to the house of the deceased and gave warning and at that time, the accused appellant Ram Kumar was armed with 12 bore gun and accused appellants Narayan, Bhagirath and Mota Ram were armed with pistols and the accused appellant Ram Kumar with his 12 bore gun made a fire in the air and after hearing the noise of fire, the deceased came out from his house and the accused appellant Ram Kumar fired thrice with his 12 bore gun towards the deceased and pallets hit the deceased, as a result of which, he fell down on the ground. iii) It was further stated in the report Ex. P/1 by P. W. 1 Indraj that because of fear, he tried to run away towards his house, but the accused appellant Narayan fired with his 12 bore gun towards him and pallets hit him. It was further stated in the report Ex. P/1 that when he made hue and cry on which Om Prakash (P. W. 2), Prem Chand (P. W. 6) who were sons of the deceased came there and accused appellant Mota Ram with his 12 bore pistol fired towards them as a result of which P. W. 2 Om Prakash and P. W. 6 Prem Chand also received fire arm injuries. iv) It was further stated in the report Ex. P/1 by P. W. 1 Indraj that thereafter P. W. 5 Raja Ram (father of P. W. 1 Indraj) also came there with his 12 bore gun and he also made fire in the air, thereupon from the side of accused appellants many fires were made and Om Prakash S/o Ganpat Ram and Narendra Singh came there and his elder brother Ram Pratap (P. W. 3) also came there and thereafter the accused appellants went away. It was further stated in the report Ex. P/1 that thereafter the deceased was taken to Rai-Singh Hospital, but he died in the transit. v) On this report (Ex. P/1), regular FIR Ex. P/64 was chalked out and thereafter investigation was got conducted by P. W. 17, Nathmal, SHO, Police Station Muklava and during investigation site plan Ex. P/4, description of site plan Ex. P/4a were got prepared and through Fard Ex. P/5 blood stained soil and through Ex. P/6 simple soil was got recovered and through Fard Ex. P/7, some pieces of 12 bore pallets were got recovered. vi) During investigation, P. W. 5 Raja Ram was got medically examined by P. W. 9 Dr. Subhash Gupta and his injury report is Ex. P/29 and similarly, P. W. 1 Indraj, P. W. 2 Om Prakash and P. W. 6 Prem Chand were also got medically examined by P. W. 9 Dr. Subhash Gupta and their injury reports are Ex. P/36, Ex. P/45 and Ex. P/44 respectively and they were proved by P. W. 9 Dr. Subhash Gupta and through Fard Ex. P/66, accused appellant Bega Ram was got arrested on 3. 9. 95 by P. W. 17 Nathmal. Through Fard Ex. P/67, accused appellant Bhagirath was got arrested on 3. 9. 95 by P. W. 17 Nathmal. Through Fard Ex. P/68, accused appellant Manphool was got arrested on 3. 9. 95 by P. W. 17 Nathmal. Through Fard Ex. P/69, accused appellant Ram Kumar was got arrested on 3. 9. 95 by P. W. 17 Nathmal. Through Fard Ex. P/70, accused appellant Netram was got arrested on 3. 9. 95 by P. W. 17 Nathmal. Through Fard Ex. P/71, accused appellant Munshi Lal was got arrested on 3. 9. 95 by P. W. 17 Nathmal. Through Fard Ex. P/84, accused appellant Mota Ram was got arrested on 14. 12. 95 by P. W. 17 Nathmal and through Fard Ex. P/85, accused appellant Ram Narayan alias Narayan Ramwas got arrested on 14. 12. 95 by P. W. 17 Nathmal and on their information, guns, pistols and lathis were got recovered by P. W. 17 Nathmal. vii) The post mortem of the body of the deceased was got conducted by a Board of three members and P. W. 18 Dr. Jagtar Singh who was one of the members of the Board was produced to prove the post mortem report Ex. P/102 of the deceased and as per the post mortem report (Ex. P/102), the deceased died of shock due to internal haemarrage caused by fire arm injuries to vital organs. viii) After investigation challan was filed against the accused appellants in the court of learned Magistrate from where the case was committed to the Court of Sessions and the learned Additional Sessions Judge vide order dtd. 9. 4. 96 framed charges against the accused appellant Ram Kumar for offence under Sections 302, 307/149, 147 and 148 I. P. C. and Section 27 of the Arms Act and for offence under Sections 302/149, 307/149, 147 and 148 I. P. C. and Section 27 of the Arms Act against accused appellants Bega Ram, Net Ram and Munshi Ram and for offence under Sections 302/149, 307, 147 and 148 I. P. C. and Section 27 of the Arms Act against accused appellants Bhagirath, Manphool, Narayan Ram alias Ram Narayan and Mota Ram. The accused appellants pleaded not guilty and claimed trial. ix) During trial 19 witnesses were examined on behalf of the prosecution and thereafter statement of accused appellants under Section 313 Cr. P. C. was recorded, but no witness was examined in defence. x) At the conclusion of trial, the learned Additional Sessions Judge through judgment and order dtd. 31. 10. 2000 convicted and sentenced the accused appellants as stated above inter alia holding that it was a case of free fight and the deceased was killed by the accused appellant Ram Kumar and the learned Trial Court also came to the conclusion that the accused appellants were all members of unlawful assembly and therefore, he convicted all the accused appellants with the aid of Section 149 I. P. C. xi) After being aggrieved by the judgment and order dtd. 31. 10. 2000 the accused appellants have preferred the present appeal. In this appeal, the following submissions have been raised by the learned counsel for the accused appellants: i) That since the learned trial Judge has himself come to the conclusion that it was a case of free fight, therefore, when there was free fight, invoking of provisions of Section 149 I. P. C. and thereafter convicting the accused appellants with the aid of Section 149 I. P. C. was erroneous one. ii) That since injured persons received simple injuries, therefore, no case for offence under Section 307 I. P. C. should have been said to have been proved against the accused appellants and similarly since the prosecution has failed to establish that all accused appellants caused fire arm injuries and therefore, conviction of the accused appellants for offence under Section 307 I. P. C. with the aid of Section 149 I. P. C. was erroneous one and since all the fire arm injuries were simple, no offence under Section 307 I. P. C. was made out. iii) That if the Court comes to the conclusion that Ram Kumar had fired towards the deceased and since it was a case of free fight, therefore, there was no intention on his part to murder the deceased and at the most, knowledge should be attributed on his part and his conviction should be altered from offence under Section 302 I. P. C. to Section 304 (II) I. P. C. On the other hand, the learned P. P. has supported the judgment and order dtd. 31. 10. 2000 and submitted that the same are based on proper appreciation of evidence available on record and do not require any interference by this Court. Heard and perused the record.
(3.) BEFORE proceeding further it may be stated that for the same incident, a cross case was also registered bearing FIR No. 97/95 on the report of the accused appellant Net Ram and the challan for offence under Section 307 I. P. C. read with Section 149 and 148 I. P. C. was also filed against Het Ram, Indraj (P. W. 1) and Om Prakash (P. W. 2) and since the deceased had already died, and a case of one accused was sent to the children Court for trial, the challan was filed against the three accused persons, namely, Het Ram, Indraj (P. W. 1) and Om Prakash (P. W. 2) for committing offence under Sections 147, 148 and 307/149 I. P. C. Before proceeding further medical evidence in this case has to be seen which is found in the statement of P. W. 18 Dr. Jagtar Singh who conducted the post mortem of the body of the deceased and P. W. 9 Dr. Subhash Gupta who examined P. W. 1 Indraj, P. W. 2 Om Prakash, P. W. 5 Raja Ram and P. W. 6 Prem Chand. P. W. 18 Dr. Jagtar Singh has stated that on 2. 9. 95, he was medical officer, Primary Health Centre, Rai Singh Nagar and he conducted the post mortem of the dead body of the deceased and found following injuries : i) Lacerated wound (fire arm) 2cm x 1. 5 cm. x pleural cavity deep (oval shape) between 2nd and 3rd rib (intercastal space) on right side laceration of plura from left to right side in right lateral and downwards direction. ii) Lacerated wound (fire arm) 1. 8 cm. x 1. 5 cm x pleural cavity deep (oval shape) 4 cm. Below left nipple and laceration of plura and laceration of left lung liver from left to right side in downwards direction. iii) Lacerated wound (fire arm) 1. 7 cm. x 1. 2 cm x pleural cavity deep (oval shape) over the left side of chest 3 cm. Below the left nipple and 3 cm. Outer side of injury No. 2 to plura lower tube left lung - diaphran - stomach and intestine laceration from left to right side in downward direction. iv) Lacerated wound (fire arm) 1 cm x 1 cm (Round) cavity deep right hypochondria from the middle line of the body and 7 cm. Above umbilicus. Lacerated to ant abdominal wall and intestine. From front to back side at right angle. v) Lacerated wound (fire arm) 1 cm. x 1 cm (round) cavity deep, right lumber, region 4 cm. Away from middle line and 2. 5 cm. Above the umbilicus, lacerated to ant abdominal wall - pentanium - intestine from front to back side at right angle. vi) Lacerated wound (fire arm) 1 cm x. 5 cm. x 1 cm right ant superior iliac suprini vii) Lacerated wound (fire arm ). 5 cm x. 4cm. x muscle deep 4 cm above the injury No. 6 viii) Lacerated wound (fire arm ). 5 cm x 0. 4 cm. x 0. 3 cm. On front side right shoulder ix) lacerated wound (fire arm) 0. 5 cm. x 0. 4 cm. x muscle deep over the lateral side of right shoulder. x) Lacerated wound (fire arm) 1 cm. x 0. 5 cm. X bone deep over the post aspect in the middle hand. xi) Lacerated wound (fire arm) 1 cm x 0. 5 cm. X muscle deep over the lateral aspect of lower 1/2 of left forearm All above fire arm wounds are wound of entrance, there is no scorching/burning/smoke/powder marks/tattooing of the skin. xii) Abrasion over the left castal region 4 cm. No size 1. 5 x 0. 5, 1 cm. x 0. 5 cm, 2 cm. x 0. 5 cm having shape, simple blunt. xiii) Abrasion 2 cm. x 0. 5 cm. Over right castal region simple blunt. xiv) Abrasion 3 cm. x 0. 5 cm. Over the anterolaterial side of upper 1/2 of the right arm. xv) lacerated wound - 5 cm. x 2 cm. x 0. 5 cm. Over the middle of radial side of left forearm - simple blunt. xvi) abrasion - 0. 5 cm. x 0. 3 cm. over left ankle in front side simple blunt. xvii) Abrasion - 0. 5 cm. x 0. 4 cm. Over the lateral side of lower 1/3 of left leg simple blunt. All above injuries are ante mortem in nature. P. W. 18 Dr. Jagtar Singh has proved the post mortem report (Ex. P/102) and has opined that the cause of death was shock due to internal haemarrage caused by fire arm injuries. ;