SINGH, J. - (1.) D. B. Criminal Appeal No. 1038/2004 has been filed by Umar Daraz, Abdul Wahid, Ikramuddin, Abdul Kayyum, Nizamuddin and Hafiz who have been convicted vide judgment dated 16. 9. 2004 passed by the Additional Sessions Judge (Fast Track) No. 2, Baran in Sessions Case No. 154/2003 for various offences as under:- (i) Under Section 302 read with Section 149 IPC : Imprisonment for life with a fine of Rs. 2,000/- and in default of payment of fine to further undergo six months rigorous imprisonment. (ii) Under Sections 147 and 148 IPC : One year's rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo one month's rigorous imprisonment. (iii) Under Section 323 read with Section 149 IPC : Six months rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine to further undergo one month's rigorous imprisonment. (iv) Under Section 324 read with 149 IPC : Two years rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine to further undergo two months rigorous imprisonment. All the sentences were ordered to run concurrently.
(2.) IN S. B. Criminal Appeal No. 1075/2004, filed by Jagdish, Mool Chand, Brijmohan, Chhotulal and Rampratap, all the five accused appellants have been convicted vide judgment dated 29. 9. 2004 passed by the Additional Sessions Judge (Fast Track) No. 2, Baran in Sessions Case No. 153/2003 for the offences asunder:- (i) Under Section 326 read with Section 149 IPC : Seven year rigorous imprisonment and fine of Rs. 1,000/- and in default of payment to further undergo five months rigorous imprisonment. (ii) Under Section 324 read with Section 149 IPC : Two years rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine to further undergo two moths rigorous imprisonment. (iii) Under Section 148 IPC : Two years rigorous imprisonment and fine of Rs. 500/- and in default of payment of fine to further undergo two months rigorous imprisonment. (iv) Under Section 323 IPC : Six months rigorous imprisonment and fine of Rs. 300/- and in default of payment of fine to further undergo one month's rigorous imprisonment. All the sentences were ordered to run concurrently. Bot these appeals, at the request of the learned counsel for the accused appellants in both the criminal appeals, were heard together, as it is the admitted case of the prosecution as well as the accused appellants that even though two separate FIRs have been lodged they relate to the same incident resulting cross cases. D. B. Criminal Appeal No. 1038/2004 arises from judgment in Sessions Case No. 154/03. The FIR No. 50/1990 (Exhibit P. 31) was lodged at Police Station Mothpur, District Baran by PW 2 Ram Kalyan on the basis of a written report (Exhibit P. 3) at 7:30 PM on 10. 8. 1990 wherein it was stated by him that on the same day at about 2:00 PM accused persons Umar Daraz, Abdul Wahid, Abdul Latif, Abdul Kayyum, Ikramuddin, Nizamuddin, Gaffar, Salamat, Samiullah and about 20 other persons armed with lathi, gandasis and dhariyas came to take possession of the cremation ground and that Jagdish, Dhakad, Dhanraj, Ram Pratap, Ram Gopal and he (Ram Kalyan) asked them not to do so. When these persons were trying to persuade the accused persons the appellants, Umar Daraz and Abdul Wahid said that Jagdish is the main culprit and that he should be killed. At this Abdul Wahid, accused appellant, inflicted a blow at Jagdish with dhariya on his head. Kayyum and Latif assaulted Dhanraj by inflicting blows on his head with gandasis and all the remaining persons inflicted injuries with lathis, dhariyas and gandasis. It was stated by Ram Kalyan that he was assaulted by Kayyum as a result of which he received injuries on the head. After Jagdish and Dhanraj received the injuries, they fell down. When other person of the village came on the spot, the accused party fled away and the villagers took the injured to Atru by bus. Upon the aforesaid report, the police registered a case under Section 147, 148, 149, 323, 324 and 307 IPC. The injured were examined by PW. 5 Dr. N. D. Hirani at Primary Health Center, Atru. The injury reports of Jagdish (the deceased) is Exhibit P. 5, that of Ram Gopal (PW. 3) is Exhibit P. 6 and of Dhanraj (PW. 15) is Exhibit P-7. The X-Ray reports of Dhanraj and Exhibit P. 8, 9 and 10. The injury report of PW. 2 Ram Kalyan is Exhibit P. 11. Thereafter, Jagdish died and as a result of which offence under Section 302 was also registered. On the same day i. e. 10. 8. 1990, the FIR No. 51/1990 was lodged at Police Station Mothpur, District Baran by Umar Daraz, appellant in the appeal No. 1038/2004 at about 9. 15 PM stating therein that around 3. 30 PM when he came near the bus stand of Badora, a dispute arose regarding dumping of stones on a piece of land near the land of Nizamuddin which is a government land. The stones were being dumped from the trolley of a tractor by Ram Pratap, brother of Jagdish, Dhanraj son of Jagdish and some other labourers. It was stated that lkramuddin asked them not to dump stones, at this Dhanraj chased him away by throwing the stones on him. On hearing the hue and cry raised by lkramuddin, it was stated that he himself (Umar Daraz) and his son Abdul Wahid reached there and tried to pacify him, at this Dhanraj went away to his house and when these persons were going towards the bus stand, then Jagdish, Ram Pratap son of Ram Narayan, Dhanraj son of Jagdish, Ram Kalyan son of Ghansi Lal, Gopilal, Brijmohan Kalal, Kanhaiyalal son of Chhappan Lal Nagar, Jagdish son of Kanhaiyalal Nagar, Gulabchand, Danmal, Chhotulal son of Kanhaiyalal Nagar, Chhitarlal son of Bhagwan Khati, Moolchand (Kumhar), Chhitar Lal son of Shankar Lal Nagar, Gopal son of Chhappan Lal Nagar, Ram Laxman son of Balram Nagar and Ghanshyam son of Balram, all residents of Badora came wielding swords, dhariyas and gandasis. Gopal Lal and Chhapan Lal were having stones in their hands. It was stated that when Umar Daraz and lkramuddin were going towards their fields they were surrounded by the aforesaid persons and were giving beating. He further stated that he himself caught-hold of the gun which was being carried by Dhanraj and when he caught-hold the gun, Ram Pratap assaulted him with dhariya on his head. It was stated that Jagdish also inflicted head injury to Umar Daraz. Some other accused persons inflicted injuries with stones. It was also stated that Abdul Wahid received injuries on his head and elbow of the right hand. It was then stated that these persons ran away with a view to save themselves to the police out post and Abdul Wahid fled to the camp of R. A. C. (Rajasthan Armed Constabulary ). It was also stated that the incident was witnesses by Sammiullah son of Abdul Aziz, Salamat Ali son of Amir Mohammad, Lal Mohammad Sarpanch, Mitthu @ Mehtab Hussain and other residents of Badora. It was then stated that some constables of R. A. C. took them from Badora to the hospital at Khanpur. On this report, F. I. R. No. 51/90 was registered at Police Station Mothpur for the offences under Sections 147, 148, 149 and 323 IPC and investigation started. Thereafter, the injured were sent for medical examination. As Umar Daraz and Abdul Wahid had received injuries by sharp edged weapon, the offence under Section 324 and 326 IPC read with Section 34 were also added. Two cases arising out of Sessions Case No. 154/2003 and 153/2003 were tried by the Additional Sessions Judge (Fast Track) No. 2, Baran, Head quarter at Chhabra and decided by two separate judgments dated 16. 9. 2004 from which D. B. Criminal Appeal No. 1038/2004 arises and 29. 9. 2004 from which S. B. Criminal Appeal No. 1075/2004 arises. Learned trial Court in its judgment dated 29. 9. 2004 in Sessions Case No. 153/2003 has found that in the cases arising out of the FIR Nos. 50/90 (Sessions Case No. 154/2003) and 51/90 (Sessions Case No. 153/2003), the scene of occurrence is one and that both the First Information Reports relate to the same incident. In this regard the finding given by the learned trial court is that incident involved in both the cases is one of a free fight, as a result of which persons from both the sides received injuries. So far as FIR No. 50/90 is concerned, one person namely Jagdish died and a few other namely Ram Kalyan (PW. 2), Ram Gopal (PW. 3) and Dhanraj (PW. 15) received injuries and so far as FIR No. 51/90 is concerned, Umar Daraz, Abdul Wahid and lkramuddin received injuries.
(3.) LEARNED counsel appearing in D. B. Criminal Appeal No. 1038/2004 Umar Daraz and others vs. State of Rajasthan has tried to submit that Jagdish and others were the aggressors and the appellants inflicted injuries exercising the right of private defence relating to the property. It was submitted that the accused wanted to prevent Jagdish (the deceased) and others from dumping stones on their land and they were assaulted as a result of which they received injuries. In the instant case, concededly there is no evidence by way of any document to suggest that the land where the stones were being dumped by Jagdish (the deceased) and others belonged to Umar Daraz or any other appellants. At the same time, there is no evidence that the land where the stones were being dumped was in possession of the appellants which possession the appellants sought to protect. On the contrary, the evidence is to the effect that land was government land where Jagdish and Others were wanting to construct a public lavatory. Thus in the instant case,when the land was neither owned nor in the possession of the accused appellant, it cannot be said that any case of right of self defence of property arose in favour of the appellants. The accused have also not in their defence put any suggestion to the prosecution witnesses in this regard. The evidence that has been led in both the cases, as has been rightly held by the learned trial Court suggests that it was a case of a free fight where altercation has taken place on account of the act of Jagdish (the deceased) accompanied by some other persons who wanted to dump stones on the government land for the construction of a public lavatory which was adjacent to the land belonging to lkramuddin and on account of the objection being raised by the accused Umar Daraz and others, the altercation has taken place resulting in a free fight in which persons from both the sides have received injuries. So far as D. B. Criminal Appeal No. 1038/2004 is concerned, the deceased Jagdish, as per the statement of PW. 5 Dr. N. D. Heerani, who first examined the deceased and prepared the Injury Report (Exhibit P. 5), sustained ten injuries and out of them injuries No. 1, 2 and 7 had been caused by sharp edged weapon and the rest of the injuries had been caused by blunt weapon. He has stated that he had reserved his opinion with regard to injury No. 2 which resulted into cutting of right earlobe could have been grievous if the deformity persisted. The injuries received by the deceased Jagdish were simple in nature. Doctor has not stated that any particular injury was fatal. Similarly, he also examined and prepared the Injury Report of Ram Gopal (PW. 3) which is Exhibit P. 6. All the injuries are simple in nature. He has also examined and prepared the Injury Report of PW. 15 Dhanraj, who received seven injuries. All were simple in nature. He also examined and prepared the Injury Report (Exhibit P. 11) of Ram Kalyan (PW. 2) who received three injuries. All were simple in nature. Thus, the injuries which were caused in this free fight to the injured in D. B. Criminal Appeal No. 1038/2004 arising out of FIR No. 50/90 (Sessions Case No. 154/2003) are all simple in nature. ;